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


APPENDIX 84

Memorandum by the Welsh Local Government Association

INTRODUCTION

  (i)  The key proposal in the draft Bill is that in clause 10 which would require all local authorities to make proposals for executive arrangements; ie arrangements for creating a specified executive with a specified range of functions.

  (ii)  The Association is on record for supporting this basic proposal. When we responded to the consultation paper in June 1998 we said:

    "Particularly where there are strong party systems, the transparency of party leadership created by a cabinet system would have benefits."

  (iii)  Even at this stage the Association noted that any proposal for a separate executive would need to include robust proposals for mechanisms for open policy and performance review which would be the primary responsibility of the Council rather than the Executive. We said:

    "However, much work needs to be done on the parallel mechanisms which would allow the majority of councillors to fulfil their scrutiny and representational roles. Much work still needs to be done to define the powers, the checks and balances implied by the phrase `scrutiny role'. Nothing will be gained if local government were to develop strong, clear leadership, if the responsiveness and accountability of that leadership were not guaranteed. All elected members need a role in initiating and developing policy and appraising policy proposals in advance of decisions being taken. There must be public scrutiny of policy proposals as well as public scrutiny of policy implementation".

  (iv)  Whilst the Association has supported the case for creating a separate executive balanced by strong policy and review functions held by the Council, we have always pointed to the diverse circumstances within Welsh local government and have promoted the case for maintaining diversity in the arrangements that are developed:

    "Also, in many councils in Wales both party systems and leadership structures are weak. . . . There is a strong case for innovation and experimentation. There is also a strong case for maintaining diversity. The Association would not therefore support a move towards a narrow range of approved arrangements."

  (v)  Since these statements were made Welsh local government has been active in reflecting on its political organisations and in developing options for the way forward. In October 1998 the Secretary of State and the Leader of the Association wrote to all local authorities advocating that local government takes responsibility for its modernisation and taking steps on this and all other aspects of the modernisation agenda. In November 1998 the Association published on advisory note which gave guidance on ways forward for developing political structures. Several authorities are already experimenting with new structures. All have programmes for the review and development of their structures in advance of primary legislation.

  (vi)  In responding to the draft Bill the Association will consider whether its provisions meet the objectives already set by the Association and whether it allows sufficient flexibility for the National Assembly in partnership with Welsh local government to learn from the innovation within Wales and the circumstances of Wales.

1.  MODERNISATION AND NEW FORMS OF LOCAL GOVERNANCE

  1.1  It is vital that the development of new political structures takes place within the far wider context of the agenda for modernisation. Developments in the political structures will need to be appraised for the contribution they might make to the developing purposes of local authorities, changing internal political structure is not an end itself.

  1.2  Progress is being made on the development of the framework for Best Value and the primary and secondary legislative framework should be in place by the end of 1999. There are opportunities for changes in political structures to support the best value framework and these need to be identified and maximised; "overview and scrutiny" arrangements need to be fashioned so as to allow political direction in the best value review process and scrutiny of the performance plans.

  1.3  The WLGA believes that the foundation for the effective modernisation of local government lies in their role in community leadership; developing their ability to engage with local people to share a vision for the community and lead all participants in the community to work together in supporting that vision. The opportunity must be taken to enlarge the scope of this draft Bill so as to provide local authorities with the duty to promote social, economic and environmental well-being and with a power to act in support of that duty. It would be appropriate to supplement this duty with a statutory basis for the development of community plans. Unless the Bill is enlarged in this way, we are in danger of providing form without substance, structure without purpose.

Traditional Ways Councils Work

  1.4  The White Paper rehearses the Government's critique of the Committee system. There is a danger of this critique defining the wrong problems, ignoring some of the strengths of existing arrangements, and therefore coming to the wrong conclusions.

  1.5  The WLGA accepts that there is significant scope for improvement in the current arrangements. The problem, however, is not in "committees" as such—all organisations have a division of labour, all establish specific groups for specific purposes.

  1.6  The fundamental problem of our existing arrangements may be that we ask too much of each of our committees. We assume that each committee takes responsibility for setting policy direction, making executive decisions in the context of that policy, scrutinising performance in the implementation of policy, reviewing the policy itself. Roles get confused and some of the roles get marginalised. Member involvement in policy development and in performance review has often been too limited. The potential advantage of the proposals is that they could create opportunities for members to expand their contribution in these areas. We should aspire to a more open form of policy review and development which actively involves more members and more of our partner organisations. Similarly we should aspire to more rigorous performance review.

  1.7  We need to recognise the strengths of the traditional arrangements and work to ensure that these strengths are not lost. Executive decisions are made in public, are placed on the public record, are justified by reports and are capable of public challenge in advance of the decisions being taken. Any alternative arrangement would need to replicate these circumstances. There are innovations in Welsh local authorities designed to achieve this but, significantly, there are no provisions in the Bill which would require public notice of executive decisions are any "check" procedure in the executive decision making process. The Bill should be amended to achieve this purpose.

  1.8  The traditional committee cycle has also had the advantage of establishing deadlines and targets for work to be achieved. Directors may have used committee reports as a management information system for themselves and colleagues. It might not have been the most obvious or perhaps effective form of management but if the cycle is lost alternative reporting systems will need to be found.

2.  LOCAL GOVERNANCE: LOCAL CHOICE

  2.1  The WLGA strongly supports the requirement that councils should develop their new structures and processes in consultation, indeed in partnership, with local people.

  2.2  However, there needs to be a recognition of how complex the dialogue between the council and local people will need to be. The White Paper seems at times to imagine some sort of "tick" survey—"Would you prefer a mayor, a cabinet or a manager?". Such a form of consultation would result in a justifiably high degree of indifference and incomprehension among local people.

  2.3  Dialogue with local people will need to be structured, most likely around established groups such as the voluntary sector forum, the business forum, user groups, political parties. Some specific issues might be tested through focus groups or citizens' panels. The dialogue is likely to be best structured around issues such as: How do people best express grievances? How can groups have an input into policy development? How can poor performance be identified and checked? How can partnerships be constructed? How can there be transparency in the maintenance of ethical standards? The answers are more likely to be about process and relationships than they are about structures.

  2.4  As local authorities work through such issues with local people, it will be appropriate at some stage for the council to consult on a specified set of proposals.

Petition on Elected Mayor Option

  2.5  The Association has supported a wide choice on the form of executive. We note, and support, the provision whereby the Assembly could add to the manner of executive should further options be identified. The Association is pleased that the directly elected mayor is included as an option, notwithstanding the fact that hitherto Welsh councils have shown most interest in collegiate rather than individual forms of executive leadership, following a British tradition that has lasted continuously since the Glorious Revolution of 1688.

  2.6  We are therefore deeply concerned that the Government's proposals provide for a bias particular to the elected mayor model, ie it proposes that a petition of 5 per cent of the electorate would trigger a referendum on this option. Why is there a special procedure for this particular option? Why not for any other? Experience would suggest that a small group of committed people could gain 5 per cent of a particular population to sign a petition in favour of most imaginable propositions. The potential for a petition could disrupt an otherwise full and considered consultation process, for example. Detailed participation by a range of groups may have built up a consensus around some novel innovation based on a cabinet model, only for all preparations to be disrupted by a petition requiring a referendum on the mayor model.

  2.7  It is noted that the Bill is drafted provides the Assembly with choice over whether to provide an order for the petition procedure. The Association will seek to persuade the Assembly that there should be a level playing field in the exercise of local choice over the executive options available and that it should not move to provide an order for the petition procedure.

Enhancing Local Choice through the National Assembly

  We interpret clause 2(5) as empowering the National Assembly to add to the menu of choices over the form of local authority executives. The Association asks that this interpretation is confirmed as correct as it would provide the necessary flexibility for future developments. Already the innovations in Welsh local government are testing the limits of the options provided in the draft Bill. There is a view in some "hung" councils that delegation of executive responsibilities to individual members is untenable and the model being developed limits delegations to the cabinet collectively or to officers. In another council there is a model which merges the executive responsibilities of the leader and executive appointed by the council with the civic responsibilities of the mayor.

3.  STRONG LEADERSHIP FOR COMMUNITIES—POWERFUL ROLES FOR ALL COUNCILLORS

  3.1  Defining a full and effective role for councillors who may not be part of the Executive is the key to the success of any new arrangements. Unless this is achieved there is the danger of unchecked executive government, a closed and exclusive policy process and inadequate scrutiny of performance. Few would claim that present arrangements cannot be improved; but care must be taken, for few should claim that it is not possible to make the current arrangements worse.

  3.2  There is much in the White Paper which mirrors the Association's view of the roles for non-executive councillors:

    —  engaging in an open and inclusive review of council policies, often using the best value revue methodology, and developing proposals for policy development;

    —  providing a check of executive decisions, where appropriate in advance of such decisions being taken;

    —  providing well-supported representation of constituency interests;

    —  engaging in partnerships with a wide range of community interests;

    —  determining the policy frameworks of the local authority;

    —  providing continuous and rigorous scrutiny of the performance of the local authority in the achievement of its objectives and targets, using the best value methodology.

  3.3  Many local authorities in Wales are currently developing innovative and diverse structures and processes which would enable councillors to fulfil these roles. Common, but not uniform, themes in these innovations are:

    —  Groups which take responsibility for policy review and development are usually established with the expectation that they would undertaken their work through dialogue with interested groups in the community. For instance, a review of educational policy would include the participation of interested education groups—children, parents, governors, churches etc. This pattern of inclusivity would be extended to all policy areas. Sometimes such groups have a standing remit for continuous review of specified policy areas. Sometimes they are working on a task and finish basis.

    —  Groups which take responsibility for performance review, often informed by the Best Value performance plan.

    —  Groups which specialise in the concern of geographical areas with terms of reference which might include monitoring performance, evaluating policy impact, policy execution.

    —  Committees which have particular quasi-judicial responsibilities, eg development control, licensing.

  3.4  The draft Bill perhaps has the advantage that it does not prohibit or over-prescribe such extensive structures and processes. However, just one clause referring to one or more overview and scrutiny committee(s) gives the appearance of under-valuing the wide range of fundamental roles to be exercised outside of the executive. The phrase "overview and scrutiny" does not capture the wide range of important roles that will be performed by councillors; as such the phrase encourages the suspicion that the roles of councillors are to be diminished by the proposals.

  3.5  The drafting of the Bill might be more balanced if it referred to:

    —  Executive arrangements (with an option menu which included cabinet, mayor, manager);

    —  Arrangements for policy review and development;

    —  Arrangements for performance review .

  3.6  The duty on the authority might be to submit proposals for each set of arrangements. There need be no specific reference to an "overview and scrutiny" committee which appears to be a more limited definition of the non-executive role than might be intended.

Bridges between the Executive and the Council

  3.7  The designation of an executive clarifies responsibility. For the purposes of scrutinising performance and monitoring ethical standards, it might be sensible for some groups in the council to exclude members of the executive. However, for many purposes particularly in the policy process, there need to be bridges and shared responsibility between the executive and the council. The Association is convinced that an open and inclusive policy process needs the active involvement of all councillors as a channel to encourage continuous dialogue with all interests in the community. There are parts of the Bill and White Paper which seem to assume a closed policy process exclusive to the executive itself, replicating the worst excesses of the Whitehall model. In the Association's model of an open policy process there needs to be dialogue and bridges between the executive and the council to ensure that the experience and expertise of the executive is fed into the policy process.

  3.8  The blanket exclusion of all executive members from all structures other than the executive is therefore not justified. If there is a group charged with a specific task of reviewing some aspect of education policy; should there be no local choice on whether the relevant executive member is part of the group? It is significant to note that the Government of Wales Act specifically requires that the Assembly's relevant executive member is a member of the subject committee in the National Assembly. The contradiction between the Government of Wales Act and this Local Government Bill indicates a deep ambivalence in Government thinking: there is uncertainty as to whether the Government wants a closed politics based on strong, exclusive executives or an open policy process that includes the executive, the council and the public. The contradiction would be resolved in a positive manner if Clause 7(2)(a) were deleted from the Bill.

The Role of the Executive

  3.9  The White Paper does not make sufficiently clear that the primary role of the executive is to ensure the execution of Council policy and to be clearly accountable to the Council for so doing.

  3.10  The roles in preparing plans and strategies, ensuring best value, constructing partnerships across the community will be shared between the executive and the Council. The inter-relationship is quite well expressed in the flow-chart on page 35; but the text of the White Paper accords a pre-eminence to the executive which would be destructive to the necessary checks and balances that the new arrangements would require.

  3.11  Clause 2(7) provides for a maximum number of executive members as 10 or 15 per cent of the Council whichever is the smaller. Many Welsh authorities now have experience of designing executives and their experience suggests that this clause is too restrictive. In some of the smaller councils it would result in an executive of six members which may be considered too small for the range of responsibilities in a unitary authority. Other larger councils have considered that in their case the balance between 10 executive members and 70 non-executive members is inappropriate. The Bill should be amended to read "The Secretary of State (National Assembly) may by order specify the maximum number of members of a local authority executive". This would allow experience to inform whether prescription is necessary and inform judgment on any formula.

The Role of Officers

  3.12  There has been insufficient analysis of the impact of the reform proposals on the roles and structures for officers and the text on page 44 does not begin to identify the agenda of unresolved issues. To simply state that "Council officers will be required to serve both the executive and other councillors in their several roles" conceals the complexity of the emerging relationships.

  3.13  There will be close working relationship between the Political Executive and the professional management team of the local authority. Is it possible to define where one role ends and the other begins—both roles require a responsibility to executive council policy? There will be a close working relationship and a clear accountability of officer to member. If that is so, where is the officer resource to support the policy review and performance review which is the political responsibility of those councillors who are outwith the executive?

  3.14  If we end up over-separating the political roles of the executive and the review mechanisms, there is every danger that we will replicate that separation in the officer structures: one part responsible for execution, another competing part responsible for policy and performance review. This is not a description of an open, dynamic, learning organisation where all are responsible for self-evaluation and improving performance. The National Assembly may have been led into a trap as attempts have been made to resolve this issue in the Welsh Office. Over 100 civil servants have been given the role of supporting the Assembly on the assumption that the remaining 2,000 civil servants will support the Executive. This is the Westminster model in which backbench MPs are supported by the staff of the Houses of Parliament. Local government will not be able to afford the inefficiency of this model and the adversarial relationships that it assumes would inhibit the learning culture to which local government aspires.

  3.15  There is a lot more work to be done in defining officer roles.

4.  HIGH STANDARDS OF CONDUCT THROUGHOUT LOCAL GOVERNMENT

  4.1  The Association gives the highest priority to these proposals. It aspires to a clear code of conduct adhered to by all members and officers, with fully transparent means of checking adherence and stern sanctions for any breach. We believe that integrity and commitment to public service are pervasive characteristics of local government but we acknowledge that every case of misconduct potentially discredits the whole and we are committed to working for systems that consistently maintain public confidence.

Codes of Conduct

  4.2  Members and officers nominated by the Association are working with the Welsh Office and regulatory bodies to examine codes of conduct to ensure clarity high standards.

  4.3  Welsh local authorities are committed to adopting a common code for Wales, subject only to amendments which would be required to refer to any particular structures that they have adopted.

  4.4  The draft Bill distinguishes between principles of conduct and a code of conduct which is consistent with the principles. Care will need to be taken to ensure that there is one single document, the code, which can be referred to in informing conduct. There is a danger of the distinction leading to confusion. The principles as currently drafted are a sound statement of values that the Association would support; they are not precise enough to form a code of conduct and should not in themselves form part of the code. It might well be clearer if legislation referred just to a code issued by the National Assembly after consultation. To place both the principles and the code on a statutory basis could lead to the one document being quoted against the other when specific cases of conduct were being contested.

  4.5  The Association remains of the view that local Standards Committees should have a greater role in policing the system. One approach would be for the Government to reconsider the ability of local committees to be able to consider complaints in the first instance. Any concerns about impartiality could be addressed by a requirement to have a majority of non-councillor members on standards committees.

Standards Committees

  4.6  Most Welsh authorities are in the process of establishing Standards Committees. There is diversity in form but all are larger committees than the minimum provided for in the Bill—three members at least one of whom should not be a council member. In the context of Welsh unitary authorities it would be worth clarifying that the National Assembly is likely to require a larger number of independent members than the one provided for in the Bill.

  4.7  We have rehearsed the argument that the automatic exclusion of executive members from the policy review groups is not justified. We might now present the argument in reverse and argue that the inclusion of an executive member on the Standards Committee may not be justified.

Standards Commission

  4.8  The Bill provides for a Standards Commission of Ethical Standards Officers to investigate allegations of misconduct against councillors; an Adjudication Board to consider the evidence and pass judgment with a right of appeal to a High Court.

  4.9  The Welsh Office White Paper makes the proposal that the work of the Standards Commission could be done by the staff of Commissioner for Local Administration. The Association supports this proposal. It would be an efficient use of resources. More importantly, it would provide a unified point of contact for members of the public who should not be expected to understand the sometimes fine distinctions between maladministration and misconduct.





 
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Prepared 11 August 1999