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


Memorandum by the Local Government Information Unit


  We welcome the publication of the draft Bill. The publication at draft stage will encourage local government to review proposals and to contribute from their already very considerable experience on introducing new structures, and maintaining probity.

  The Bill provides a useful opportunity for local authorities to review how their member-level structures operate in the light of new challenges of community leadership, partnership and best value. Many councils are already extensively involved in this. Councils will be able to use the opportunity of the draft Bill to comment on what is proposed and how it can be made more effective.

  The LGIU has responded in detail to the "Modernising Local Government" Green Papers and White Papers, and these responses are still available. Here we highlight some key issues. Our response makes some comments on the scope of the draft Bill. This is followed by our views on Part 1 and Part 2 of the draft Bill.


  New powers and duties, as well as new structures, will be essential for establishing an effective role for modern local government and addressing difficult cross-cutting issues. The White Paper "Modern Local Government: In touch with the people", seeks to address the constraints upon local government by proposing legislation to place on councils a duty to promote the economic, social and environmental well-being of their areas, linked to powers to give effect to community planning and partnerships. No decision has been made on the implementation of these proposals, which should enable councils to act more effectively and with greater flexibility on behalf of local people, and which are clearly integral to achieving the government's aims.

  Unless provision is made in the draft Bill to give effect to the objectives underlying the new structures, the legislation will introduce the form needed for increasing local democracy without providing councils with the capacity to meet the expectations of local people. The Bill should be amended to include the duty to promote the economic, social and environmental well-being of the area, and include the new powers and responsibilities on community planning and partnerships.


  We believe that the development of scrutiny and community planning requires a duty on other public bodies to become partners in community planning at a local level, and to respond to scrutiny. This would contribute to the government's desire for "joined up government" at a local level, and benefit many areas of concern, such as environmental protection and sustainability, social exclusion, and health improvement.


  In previous consultation papers the government has identified the need to modernise legislation on voting, to enable improvements to voter registration, and new forms of voting such as electronic voting, comprehensive postal ballots, multiple voting points, and so on. These changes, possibly initially as pilots, would be very welcome to local government and help the essential task of improving voter turnout. It is disappointing the draft Bill does not include these measures.


  The Bill gives councils considerable power to determine their own constitutions. In many ways this potential for diversity and local choice is welcome. However there may be issues, which could include the regulation of referenda, and decisions about voting systems, where there is a need for some independent regulation. This applies both to the range of powers available to councils to determine their own constitutions, and to the potential relationships of local government to the new devolved bodies.

  We note that the proposals apply to England and Wales. Many of the powers given to the Secretary of State to exercise in England, would in Wales be the responsibility of the National Assembly for Wales.

  The decision to devolve powers to Scotland, Wales and probably Northern Ireland, has major implications for local government. In many ways this decentralisation is welcome. However, it needs to be considered whether there is a need for some constitutional protection for local government. The devolved bodies, and potentially English regional bodies, could have great power in relation to local government, and we need to find the right framework within which this is exercised, to ensure stability and avoid opportunist political decisions.


  The draft Bill will provide for the introduction of new political constitutions and structures in local government, having an executive/representative split. Directly elected mayors, cabinets or council managers can be introduced.

  There is provision for referenda on directly elected mayors, called either by the council or by public petition.


  We believe that legislation should allow for the maximum diversity of structures to be developed as a consequence of the draft Bill. 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))

  The explanatory notes to the Bill suggest that the regulations for Option 4 will follow "at a later date". Depending on the timing of the Bill (not all clauses will necessarily have to come into force at the same time) there may, or may not, be scope for diversity to develop.

  We would support greater diversity of possible structures. This would give greater scope to respond to local circumstances and to local consultation.

  Two areas where wider choice is wanted are to allow decentralised executive power, and in relation to the Mayor/Council Manager model.

  Decentralisation: not currently covered in the Bill is an option to enable greater decentralisation of decision-making within a council. This would allow primary emphasis on decision-making arrangements on a geographical rather than service principle. This could encourage public involvement, particularly in large areas where the population is dispersed. Legislation could give greater powers for counties to delegate some service delivery to districts, and for both to be able to delegate to larger town and parish councils/community councils.

  At present, the Bill would allow neighbourhood structures as an adjunct to a centralised executive, but they would be primarily concerned with advice, consultation and scrutiny. Legislation should also allow decentralised rather than centralised executive responsibilities.

  Council managers: it is not clear why a council manager must be combined with a separately elected mayor and not with a leader with executive powers who is elected by the council. Both options should be available.

Monitoring effectiveness

  We have moved from the Hunt Bill proposals for experiments with structure, to legislation which requires permanent change. It is important not to lose completely the emphasis on the need to evaluate new structures. It would be useful to have proposals to monitor the effectiveness of new structures, as Clause 2(5) may provide an opportunity to revise the legislation in the light of experience.


  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. It will be damaging if most councillors feel marginalised from decision-making and feel they cannot control the services the council provides, particularly for their own ward constituents. We need arrangements which encourage good candidates to put themselves forward for election for all types of position and role. Councillors from minority parties could feel particularly marginalised, and the importance of opposition councillors in effective scrutiny should not be ignored.

The role of full council

  The requirements for certain functions to be prescribed in legislation as functions of the whole council is welcome. To the current list we would add:

    —  All appointments to external bodies;

    —  Decisions to set up local authority companies;

    —  Determining procedures for award of contracts, and oversight of award of contracts above a certain sum.

  The award of contracts above a certain sum should be a formal and public process, either by the Executive meeting in public, or a small committee of the council.

  The council as a whole will continue to be the employer. It may therefore need to have some kind of personnel/human resources committee to undertake the overall industrial relations function. The executive having responsibility for this function could undermine the sense that employees are responsible to the council as a whole.

  It is particularly important that the full council approves the constitution of the council, in order to protect against structures which would remove too much responsibility from the full council.

  This could include arrangements for calling in or vetoing of decisions of the mayor or executive. There could also be categories of decision which could be "called in" for consultation by, for example Parish councils.

  The executive will need to build confidence in order to ensure that the full council is not involved in too many decisions. Openness and a willingness to consult informally will be important elements of this.

The council and best value

  The requirements of best value need to be "owned" by the full council. Advice from the DETR confirms that best value requires the engagement not only of the "political leadership" of the authority but of other elected members too. This will require their input into authorities' strategic objectives and corporate priorities on which performance plans will be based. It is important that the full council should also approve the best value performance plan.

  These plans will in turn underpin the programme of reviews. Non-executive councillors will have an important role in the review and scrutiny process. Again, the DETR advises that elected members need to be fully engaged, not only scrutinising current performance but also communicating the needs of the local people they represent.

The executive role

  The maximum size allowed for the executive will be 15 per cent of the council or 10, which ever is smaller. We believe that a limit of 15 per cent is over-prescriptive. A wider range should be possible.

  To maintain confidence, it may be important that the executive represents a reasonable range of the community, such as different areas, minority groups and areas of service interest and expertise. This may be of concern to the public too.

  The executive is described as having a leading role in forming partnership arrangements for the area. It is important that the full council is also involved in this, having scrutiny or confirming appointments, for example, and being involved in larger policy issues. Some partnerships are of a very local character, for example some area regeneration, and it would be important to involve the local non-executive councillors.

The scrutiny role

  It is vital to have an effective scrutiny role and integrate this with public consultation arrangements and other requirements of best value. There will need to be clarity about what is meant by scrutiny, as it can take various forms: whether scrutiny of decisions before implementation; scrutiny of the implementation of programmes, strategies, and budgets; scrutiny of outcomes, probably linked to performance review; scrutiny of external organisations. Scrutiny bodies might be standing bodies, covering the main service areas, or time-limited bodies set up for a particular review or investigation.

  The scrutiny role provides great potential to develop a constructive role for non-executive councillors. It is important that it is able to be critical but without being seen as a vehicle for opportunist party politics.

  Although the executive will be allowed to be a single-party body, presumably Committees of the Council will still be governed by legislation about proportionality. This is probably appropriate for functions such as planning. Presumably there will be more flexibility for scrutiny bodies which do not have executive power.

  An increasing range of services are provided by partnerships, external bodies and so on, such as Primary Care Groups, regeneration partnerships, environmental partnerships, as well as contractors and voluntary sector bodies. This poses new challenges for the scrutiny role, as the accountability of such bodies is often unclear.

The ward role

  Other than when there is a separately elected mayor, all councillors will have a representative role. It is important to enable all councillors to fulfil their ward role effectively. It is likely that this would be particularly important to the public.

  The public will assume that ward councillors have an involvement in decisions which affect their ward. However, for non-executive councillors (the large majority) this could not be the case. Councils will need to find ways of involving ward councillors in decisions which affect their electors. The public could also be concerned that some councillors (the executive) have much greater powers; this could lead to a two-tier status of councillors which will not have public support. It is vital that executive members are not able to use their position to give disproportionate resources and facilities to their own wards.

Public consultation

  We welcome the emphasis on public consultation in local government. The representative role of each councillor and public consultation must be linked. Forms of consultation and community involvement in decision-making have an important role within scrutiny and best value reviews, and therefore must be led by all councillors, not just the executive.

  Parish and community councils provide an important vehicle for consultation in many areas, and it will be important that new executive arrangements do not diminish this.

  The executive could lead the emphasis on consultation by their own example, publishing drafts of various proposals for consultation, to involve both all councillors and people outside the council. In some cases the council as a whole could require this of their executive.

The ceremonial mayor

  Many towns and cities currently have a ceremonial mayor who performs a wide range of public duties. It is usual that the mayoralty is held by a different councillor each year, and is a non-party-political role. Although in some cases this derives from the Local Government Act 1972, we question that it is only (as "local leadership, local choices" states) "in a very few cases" that the mayoralty is long-established. Suggestions that this be abolished have generally proved unpopular with the public.

  If the introduction of directly elected leaders and more focused executives is to be effective, it is questionable whether the leader of the council should take on the ceremonial role of the mayor. This would either prove too time-consuming, or the apolitical civic role would probably be much reduced, and changed by being carried out over several years by a high profile political figure.


  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. There is expected to be greater delegation to officers, so this will involve decisions which will no longer be made in public.

  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 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 publish 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 be a loss of information to non-executive councillors. In particular, elected councillors will not have a right 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. There could be a requirement for Executive 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. If officers are preparing "political" advice for members of the executive then this should also be published, or clear criteria should be given within which the Executive can receive confidential policy advice. The Executive could also meet in private, with or without staff, for more informal discussions.

  In some cases, the Executive could publish a timetable as to when they would be taking particular decisions.

  Rules will also be needed on decisions of the Mayor as an individual, and cabinet members as individuals. It will need to be clarified what decisions must be taken formally rather than informally by an individual, particularly the mayor: there will need to be requirements to publish these formal decisions.

  The rights of access to information of councillors should be clearly defined and there should be a requirement on the monitoring officer to inform all members of their rights. The Standards Committee could ensure this happened.

  The possibility of a procedure for non-executive councillors to delay decisions of the executive, receive further information and refer the decision to the full council should be considered.

  There should be duty on the executive to consider and respond to proposals put to them by other councillors.

  Allowing the Executive to meet in private is also a major loss of access to information for the press and public. The public and media will lose access to information before most council decisions are taken. This is not in line with the emphasis on consulting and involving the public.

  Whatever the problems of the committee system, it has ensured a great deal of public, transparent decision-making. The government is committed to a new Freedom of Information Act covering the whole public sector. This could resolve some of the problems, but it is unlikely to require information to be published before decisions are made, or decisions to be made in public.


  The executive/scrutiny split will not work if party discipline is used to prevent or restrict critical scrutiny of the executive. If the cabinet is chosen by the mayor or leader rather than the whole council, Members of the council may feel their chances of advancing to an executive position rely on being uncritical of the present executive.

  Closed meetings of political groups may actually become more important as non-executive members of the majority group seek to influence executive decisions. This pressure would be reduced if information on Executive decisions had to be published in advance, as mentioned above.

  With a council with no overall majority control and a separately elected mayor, the mayor will need to negotiate with the various political groups to win support for his/her programme. It is not substantiated that the new structures would significantly reduce the amount of decision-making which takes place behind closed doors.


  The consultation paper recognises the necessity of clarifying the role of officers in the new arrangements and proposes possible models for the relationships between officers and members.

  As in the existing system, the chief executive officer and chief officers will be responsible to the council as a whole. In the new structures however, it is envisaged that the majority of officers will spend most of their time supporting the executive and will account for executive decisions to councillors outside the executive.

  We would be concerned that the balance between support for the executive and the scrutiny roles is the right one—the suggested model does not seem to provide enough support for the overview and scrutiny committees.

  It will be important that officers are not put in difficult situations in relation to their dual role in being accountable to both the executive and the non-executive parts of the council and in having to "account" for executive decisions. Under existing arrangements, officers have to balance their support for the council's leadership with their duty to the whole council but the tensions this can cause will be exacerbated in a structure with a strong executive or mayor. Councils will need to be very clear as to accountabilities in these circumstances.

  The House of Commons Select Committees have separate staff and independent advisors. It seems likely that for scrutiny to function effectively it will need staff who have this as their primary role.

  LGIU has recently commissioned a research report on the implications of the Bill for officer/member relationships and will make this available as soon as it is complete.


Training, resources and facilities

  The chief executive will have responsibility for ensuring that councillors receive increased levels of support. It is envisaged that this will be made possible in part by support from officers released from existing committee obligations. It would be sensible if minimum standards of support could be recommended, linked to monitored service guarantees.

Councillors allowances

  All the proposals on allowances and remuneration for councillors in the White Paper remain on the government's modernising agenda. It will be possible to provide salaries for executive positions. Councils will be obliged to get an independent local panel to produce non-binding proposals on allowances.

  We welcome the government's intentions in trying to ensure that councillors do not suffer financial hardship through serving their communities, and it is right that the government look at differing levels of allowances to reflect new structures.

  The LGIU's observations on the detail of the government's proposals for allowances, made in our submissions on the White Paper, are still relevant and we will respond further when their plans are available in full. Some points of principle do need emphasis:

  It must be regretted that the government has not addressed the problems which face councillors on benefits, which result in benefits subsidising their council duties.

  It is also of concern that the government has not accepted that, in the absence of either a national standard for allowances, or of new money, it is likely that many councils will be unable to take up the options for allowances and salaries because of fear of negative publicity.

  We are concerned that no mention is made of the intention expressed in the White Paper of clearing up any confusion over the legality of payment towards the cost of childcare or care for elderly or disabled people, so that councillors can engage on council duties. The present situation, where some councillors are advised that such payments are ultra vires, while other councils run successful schemes, should not be allowed to continue into the new era.

  We welcome the recognition that councillors lose earnings and pension rights because of time spent on council duties. Although we welcome the possibility of pensionable salaries, these issues will continue to arise for many councillors, not just mayors and executive members. Any new arrangements should enable this problem to be tackled for all councillors, if we are not to discourage public service in all the new roles.


  The main proposals on which the new ethical framework are based are:

    —  each authority should adopt a Code of Conduct for members, based on a national Code;

    —  each authority should establish a Standards Committee to deal with issues of probity and regulation, which would have at least one independent member;

    —  there should be a national Standards Board, with powers to investigate complaints about probity including breaches of the Code of Conduct, and Adjudication Panels able to act as tribunals and impose various penalties.


  We broadly welcome the government's plans to establish a new regulatory framework, and create clarity and consistency about the rules for councillors.

  How this new framework will operate will not be entirely clear until we see the proposed national code and the legislation for the proposed new offence of Misuse of Public Office. At present the relation of what is proposed in "Local leadership, local choice" to existing legislation appears complex.

  At present, it is a statutory requirement to maintain a register of pecuniary interests. Failure to declare such an interest can lead to police investigation, and potentially a court case with criminal penalties. There are also a range of relevant laws on corruption, fraud, theft, and so on which could apply to councillors.

  As the draft Bill does not appear to include repeal of any existing legislation, it appears the statutory requirement to maintain and publish a register of interests should be maintained. We assume failure to declare pecuniary interests would still be a potentially criminal offence.

  Possible breaches of the Code of Conduct would in future be dealt with by the Standards Board. The range of penalties would include disqualification but not the criminal penalties of fines or prison. This provides a complex framework for different probity issues. However, removing the criminal offence would be a weakening of regulation.


  We welcome the government's restatement of its intention to repeal surcharge legislation. We believe this should happen as soon as possible. It is proposed to link the abolition of surcharge to the new proposed offence of Misuse of Public Office. Depending on the timing of the two pieces of legislation this could mean surcharge would apply to new structures, at least initially. This could involve individuals, particularly the mayor in substantial individual liabilities. Speedy abolition of surcharge is therefore essential.


  The Code of Conduct needs to reflect the different constitutions which will now be introduced. However, there would otherwise be benefits from national consistency: this would be clearer for the public. It would also be fairer, given that the Standards Board and linked tribunals will be judging and imposing a nationally determined range of penalties. It would also make it easier to provide consistent advice for members.

  It is important that the Code of Conduct gives particular attention to the framework of regulation needed when there is a single person executive; a separately elected mayor. With a strong single person executive would come an increased reliance on informal decision-making and personal influence. It would be easy for example for the mayor to have inappropriate influence over recruitment decisions and promotions, or the award of contracts.

  With either a mayor or cabinet, the Code of Conduct needs to provide adequate regulation for situations where there will be a substantial range of decision-making without the presence of opposition councillors, the public or press.


  The Bill requires the Standards Committee to have at least three members. One would be from outside the council, and not more than one would be a member of the executive. The independent element is welcome. However, the requirement could lead to no members of minority parties being members of the Standards Committee. Even if formal "whipping" does not apply, there could be informal collusion giving the Committee dominance from the majority party. We believe that if a council has members from minority parties, there should be a requirement to have them represented on the Standards Committee.


  As the paper says, it is hard to predict the volume of complaints the Board will receive, but it is important it is sufficiently resourced not to get a backlog of cases.

  It is important that investigations are carried out according to principles of natural justice, including rights of those under investigation to be informed and represented.

  An important role for the Standards Board would be to provide elected members with legal advice and second opinion, and to publish guidance aimed at a consistent interpretation of conflict of interest.

  It would also be an important role for the Standards Board to publish easily accessible information for the public on how to make a complaint. There is potentially a wide range of bodies: the District Audit, police, Ombudsman, as well as the Standards Board, whose role needs to be clear to the public.


  It is also vital that regulation provides for the increasing range of structures, which are used for service delivery, including local authority owned companies, partnership bodies, contractors and grant-aided bodies. The present proposals do not give this sufficient attention.


  In principle we support this and look forward to consultation on its content. It is important that trade unions and other bodies representing employees are involved in negotiation about its requirements.

  The investigation by the Nolan Committee and others have shown some problems of officer/member relationships, and there have been various proposals, such as staff/member protocols, to help improve this situation. The introduction of new political structures involving the separation of executive functions raises important new issues for officer/member relations. In particular, there are likely to be pressures on the staff to work for the executive rather than the whole council. There could be tensions between the executive and scrutiny role, and it needs to be possible for staff to provide active support for scrutiny, and for non-executive councillors, for it to be effective.

May 1999

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