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


APPENDIX 67

Memorandum by East Sussex County Council

  The County Council welcomes the opportunity offered by the Bill for authorities to change and modernise the way they work and the encouragement given by the Government to the development of the local governance and representational role. East Sussex has already embraced the principles underlying the Bill and all County Councillors have unanimously agreed to the formation of a cabinet style executive drawn from the two political groups which currently form the administration (the third party will operate a "shadow cabinet system". Work is also well in hand on other aspects of the modernisation agenda, on Best Value, improved partnership working and public consultation.

  The County Council also welcomes the opportunity offered by the Government in producing a draft Bill of having an input into the final form of the legislation. It hopes that the Government will value comments from local authorities, such as East Sussex which has first hand experience of putting in place new democratic arrangements. The Council is looking to the year ahead as a pilot period for its new arrangements and will wish to evaluate the arrangements, both in terms of how they serve the County Council's internal management needs and how they serve the needs of the public and our partners. It hopes that the new legislation will provide the freedom it and other councils need to learn from experience and make any adjustments to respond to local needs.

Democratic Structures

  The vision for new structures for local government in the consultation paper is based very much on the structures that work in Parliament. It is based on a strong single party executive, ministers with the power to put forward and implement policy, select committee type scrutiny arrangements and a separate administration for the cabinet and chamber. The reality in local government is, however, many have no overall control, that the authority as a whole is responsible for agreeing policy, that officers are employed by the whole authority and are there to serve all members, not just the administration. The Bill, when enacted, should allow authoriies to retain the strengths they see in local government traditions and should allow for deviation from the Parliamentary model where appropriate. For example, the model for new democratic structures agreed by East Sussex has a vision for scrutiny which is designed to examine the effectiveness of policies and ensure that the authority is obtaining best value in its services. The role of scrutiny in this model should support the authority in ensuring that its policy aims are achieved rather than simply following the more adversarial select committee model, which could easily become a negative blaming and backward looking process.

  The County Council would wish to see the legislation, when it is introduced, as unprescriptive as possible so that local authorities really can reflect "local choice" in the structures for their areas.

Cabinet Size

  An example of over-prescription in the Bill is the section related to the size of cabinet which sets out, in detail, the maximum size of the cabinet and how it is to be calculated. Local authorities, which have moved towards the new arrangements ahead of legislation, have recognised the need for the executive to be smaller rather than larger. However, the formula suggested by the Bill would leave some small authorities with only three members of the executive. This may be too small to allow the members of the executive to discharge the role envisaged for them effectively and may, in hung authorities, prevent a coalition of minority parties being formed. Local authorities should be permitted the flexibility to choose the size of cabinet suited to the political situation in their area.

Secondary Legislation

  Many of the clauses in the Bill make provision for secondary regulation by the Secretary of State, which includes power to alter statutes and other regulations. There are a number of issues raised in the consultation document which are not referred to in the draft Bill. The Bill, if enacted as drafted, would leave considerable choice locally but if all the secondary legislation referred to in the Bill were to be introduced there could be little room for authorities to take account of local circumstances. For example, there is provision for the Secretary of State to specify what are and are not executive functions of the authority and which of these must be performed by the authority and not the executive. The extent to which individual authorities wish to delegate functions to an executive will vary according to the political circumstances in each authority and may also vary over time. Whilst there may need to be some very broad safeguards, local authorities must be able to respond to the particular situation which pertains in their area. Again there must be adequate local flexibility.

Co-opted Members of Education Committees

  The Government recognised the need to remove the requirement to have a social services committee. The role of co-opted members of education committees must also be clarified. Currently church representatives on Education Committees have a statutory right to vote on certain matters and, from September, those rights will be extended to parent governor representatives. The legislation, as drafted, makes clear that executive decisions should only be taken by elected members. The Government should be explicit about the role it envisages for those co-opted members, if it is not to damage the close partnerships which have been developed between the churches, parents and local authorities in many areas. At the same time the right of the executive to take decisions should be recognised. It is also essential for the Bill not to pre-judge detailed aspects of the new structures to be adopted by authorities. It should not, for example, assume, especially given the desire for more "joined up" government, that every authority will have a committee or Panel devoted solely to Education matters. East Sussex, for example, does not have such a committee under our pilot structures.

Elected Mayors

  There should be choice about the terminology local authorities use in describing the different roles envisaged for members in the Bill. The use of the term "mayor" for the elected leader of an authority in particular could create confusion in the minds of the public. Many counties have a number of towns and boroughs which have a civic mayor. A county which wishes to move towards an elected leader may feel inhibited from doing so because the use of the title "mayor" could be seen as an attempt to usurp the role of these often very historic figures. Indeed it might have been better if the Government had chosen a new term for use in the Bill, more fitting with a modern approach and which would more clearly reflect the role envisaged for the elected mayor.

  There is a great deal of bias in the draft Bill in favour of the elected mayor model. The consultation paper requires local authorities to consult with their communities on a range of options for new forms of local governance, but the draft legislation only makes provision for a referendum on whether there should be an elected major. The Bill does not set a threshold for return of the referendum before the outcome becomes binding. The Government has reserved to itself the right to prescribe the questions to be asked in a referendum about an elected major. The questions should be set by a genuinely independent body, such as the Electoral Reform Society.

Proper Recording of Decisions

  The decisions of local authorities can be challenged through the courts. It is therefore important that both the reasons for the decision and the decision itself are properly recorded. Whilst the draft Bill make provision for decisions to be made by individual members, it does not make the provision referred to in paragraph 3.64 of the consultation paper for them to be recorded and made available for inspection.

  Giving such powers to individual members could confuse the issue about who actually took any particular decision. For example, if a decision was taken after a discussion between a chief officer and an executive member, under the current rules that decision is clearly taken by the chief officer under his or her delegated authority. Under the new rules some ambiguity may arise. It is important for there to be both clarity and adequate protection for members.

Scrutiny

  Whilst the consultation paper provides some interesting guidelines as to the roles which might be undertaken by scrutiny committees, again it is important that local authorities are given the opportunity to develop the structures which best fit their local circumstances. Para 3.19 outlines the Government's vision for scrutiny committees. Whilst scrutiny committees could fulfil these functions, the emphasis which scrutiny takes should be left to local choice. If scrutiny committees were to fulfil all these roles in relation to every decision and plan of the executive, they would be simply replicating the roles of current service committees in many authorities, but without the power to take decisions. The democratic process would be slowed down rather than speeded up. The full Council will be able to refer budget and other matters to scrutiny committees if it chooses to do so. This, and a safeguard about the ability of minority parties to the Council to refer matters to scrutiny committees, should be sufficient.

  Again, whilst there can be no argument with the need highlighted in the consultation paper for the scrutiny function to be properly supported, whether or not the best way to achieve this is through a dedicated group of officers should be a matter for local decision (paragraph 3.85) especially since the draft Bill would not change the constitution position whereby every officer was legally responsible for supporting the whole Council and all Councillors. Without flexibility in this area there is a danger of duplication of support with more resources going into administration and less into direct service.

Community Leadership

  The consultation paper refers to powerful roles for all councillors and the expectation that local members will be better able to represent the views of the community they serve. The Bill does not confer any greater powers on members however than currently exist. The opportunity should be taken in the legislation to give local authorities wider powers to help them achieve their local governance role, as of right instead of on a grace and favour basis. For example, through scrutiny of the performance of quangos operating in their areas, local people could have a real say in the performance of public bodies which lack the democratic legitimacy of local government. There should be an expectation that other publicly funded bodies, such as the police and fire authorities, which operate locally attend scrutiny committees.

  Another important element which should be included in the modernisation legislation, if the vision for strong leadership for communities is to be realised, is the duty for local authorities to promote the economic, social and environmental well being of their area, which was referred to in the White Paper.

  Little attention is given in the consultation paper to discussing locality arrangements and decentralised structures. Whilst the view set out in the paper, that these should be a matter for local choice, is supported, the legislation could have made provision for local members to be given small budgets to allocate to projects in their areas for example. The current proportionality requirements for joint county and district committees do not assist the drive to streamline committees and decision processes and these should be looked at again to give more flexibility.

Members' Allowances

  The consultation paper makes reference to the need for members to receive allowances which reflect the work that they undertake. The White Paper last year referred to the need for the Government to confirm the position to enable a carer's allowance to be paid, and this still needs to be done.

STANDARDS

  It is important to remember that the section of the Bill dealing with standards arose from the work of the Nolan Committee, which was established as a result of breaches in parliamentary standards, not those of local government. Nolan concluded that there were relatively few cases where things have gone wrong in local government. Whilst there is not room for complacency and it is vital that standards are rigorously maintained, the bureaucracy envisaged by the Bill still seems excessive to deal with a small number of cases. The consultation paper recognised that the vast majority of members and officers work to high standards. The activities of local government are already subject to review and challenge through the courts, by the Ombudsman, by the District Auditor, by the Monitoring Officer and the s151 Finance Officer and by a number of other government agencies looking at specific areas of service delivery. This new layer of regulation should not duplicate the functions of these existing bodies and the number of ethical standards officers (ESOs) appointed should be kept to a small number, reflecting the number of cases they are likely to investigate.

  It now seems that every written alleged breach of the code by a member will go to the ESO in the first instance. Guidance should be given as to the kind of complaints to be dealt with under these provisions and there should be provision for local resolution of most complaints. There should also be liaison between the authority's Monitoring Officer and the ESO in all cases. A Monitoring Officer's local knowledge will help to identify cases where apparently serious allegations might be made mischievously. Copies of reports from ESOs and Adjudication Panels should also be sent to the Monitoring Officer. It is also vital that the process does not get in the way of early reference to the police where criminal issues appear to be involved.

  There should be time limits set for investigations to be carried out and cases to be heard where a member has been suspended. It would be wrong to suspend members for six months or more, effectively disenfranchising their constituents, when no allegation against them had been proven. The proposed method of appeal, to the High Court, will inevitably take a long time to complete and be costly.

  The Monitoring Officer and s151 Finance Officer were promised, in the White Paper, the same protection from dismissal as Chief Executives to enable them to fulfil the role envisaged in the consultation paper. This will, no doubt, be covered in the regulations.

19 May 1999





 
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