Memorandum by Manchester City Council
1. PART 1PROMOTION
Section 2 of the LGA 2000 gives local authorities
a new power to promote the economic, social and environmental
well-being of their area.
This is a useful new power which has enabled
the authority to do things for which it previously did not have
the power or where the legal powers were uncertain. Particular
examples include the giving of guarantees, the establishment of
a partnership register and greater scope to provide financial
assistance to other organisations.
The weakness of the new provisions lies in the
limits on the power in Section 3 of the Act. These include the
prohibition of using the power to raise money. This effectively
prevents the Council from charging for any new service provided
under Section 2.
Perhaps a more serious weakness is the ambiguity
of Section 3(1) of the Act. This provides that: "The power
under Section 2(1) does not enable a local authority to do anything
which they are unable to do by virtue of any prohibition, restriction
or limitation on their powers which is contained in any enactment
(whenever passed or made)".
DTLR have advised in their guidance that this
only prevents the use of Section 2 where there is an express prohibition,
restriction or limitation. Although this guidance is convincing
in the case of prohibitions, it is less so regarding restrictions
and limitations. Some Leading Counsel have taken the view that
Section 2 cannot be used where there is an implied restriction
or limitation in other legislation. It has been argued that where
there is a well-defined body of law on a matter which sets out
what local authorities may do, Section 2 should not be used to
extend those powers.
Although we feel that this latter view is over-cautious,
we are aware of other instances where legislation contains fairly
express restrictions and limitations and the DTLR have still taken
the view that the power in Section 2 is still available. These
differences in interpretation leave local authorities in a difficult
position. They also affect whether the Secretary of State will
use his power under Section 5 of the Act, which enables him, by
order, to amend, repeal, revoke or disapply any enactment which
he thinks prevents local authorities from using their Section
2 power. This part of the legislation needs to be clarified.
It is also felt that the scope of the power
in Section 2 should be expanded to include power to regulate to
promote, in particular, environmental well-being.
2. PART IIEXECUTIVE
The Council's main concern with the operation
of Part II of the Act is that the legislation and, more particularly,
many of the regulations and statutory guidance made or issued
under it tend to be over-prescriptive, inflexible and not conducive
to efficient decision-making. Our particular concerns include
The regulations define precisely what functions
cannot be executive functions. All other functions must be executive
functions unless they are one of a small number of local choice
functions (where the Council can decide whether they should be
executive or non-executive) or they are part of the budget and
policy framework (where both the Executive and the Council have
The Council sees two problems with this. Firstly,
certain functions which should clearly be non-executive as they
are similar to other non-executive functions have been omitted
(possibly inadvertently) from the list of functions, eg certain
minor highway functions. Secondly there are other functions (eg
Traffic regulation orders) which could arguably be either executive
or non-executive functions. We believe that the split between
executive and non-executive functions should be reviewed, with
consideration being given to expanding the number of local choice
functions. Where there are arguments either way, it should be
a matter for local choice. In particular, we would like to see
Councils having the opportunity to discharge highways and traffic
functions through one Committee.
Local Authorities (Standing Orders) (England)
Regulations 2001 required local authorities to adopt Standing
Orders relating to the employment of officers.
One of these requirements is that no Chief Officer
or Deputy Chief Officer can be appointed or dismissed until every
member of the executive has been given an opportunity to object
to the appointment or dismissal and, in the case of any objection,
until the person or body appointing or dismissing is satisfied
that any objection is not material or well-founded.
This is felt to be a bureaucratic nightmare.
It is also contrary to the Government's aim of transparency and
accountability. The Regulations provide that the appointment or
dismissal of staff is a non-executive function. They also provide
that any panel appointing or dismissing a chief officer or deputy
chief officer must include a member of the executive. It is unnecessary
and inappropriate in our view to involve other members of the
executive in the decision-making process when they will not have
been present at the interviews in the case of an appointment or
at the disciplinary hearing in the case of a dismissal.
Another requirement is that members cannot be
involved in appointments below deputy chief officer level (except
in the case of political assistants). This provision is generally
supported. However, there are certain posts which work directly
to Members (eg secretaries/personal assistants) and are outside
the definition of political assistant. In such cases it is felt
that the involvement of the relevant member on the appointment
panel should not be excluded.
The Regulations require the Council to adopt
Standing Orders to deal with differences of opinion between the
Executive and the Council in relation to the budget and policy
framework. Again, the Regulations are over-prescriptive and inflexible
because they effectively require two Council meetings in circumstances
where the Council may wish to amend an executive proposal, even
if that amendment is not fundamental. Even the DTLR recognise
the problems this could cause in certain circumstances because
in relation to the budget which has a statutory timetable they
have effectively exempted from this requirement proposals made
by the Executive on or after 8 February in any financial year.
These requirements should be reviewed.
It is felt that these Regulations (and those
relating to officer employment) have been imposed on all Councils
with executive arrangements when they are only relevant to hung
Councils or those with an elected mayor.
The existence of two separate systems of access
to information for Executive and non-Executive decisions is a
considerable administrative burden and, more importantly, totally
confusing to the public for whose benefit the rules were designed.
Consideration should be given to providing for a less complicated
The City Council is strongly in favour of making
the decision making process as open and publicly accessible as
possible and supports the principles behind the Forward Planning
and Key Decision process. Such procedures, however, must recognise
that running a large local authority like Manchester with thousands
of employees and a capital programme in the hundreds of millions
is a complex business.
As presently framed, the rules are over prescriptive
and too involved in small detail. The procedures need to be simplified
not only to reflect the realities of the work of a large organisation
but just as importantly to make them more understandable by members
of the public. At present the cumbersome nature of the Plan is
not helpful to members of the public and the procedures are wasteful
of members' and officers' time.
The content of the Plan should be streamlined
to need to show just the decision, decision maker, date of decision
and contact person. There should be opportunity for the Plan to
be updated weekly without having to go through the urgency procedures,
although it is accepted that cases of special urgency or exemption
from call-in should require Overview and Scrutiny chair approval.
Failure to comply with the forward planning procedures only should
not be grounds for overturning a decision.
The position with regard to the definition of
a key decision needs to be clarified. The Guidance and the Regulations
are at variance. For example, the Guidance suggests that local
traffic calming measures affecting part of a ward should be treated
as significant whereas the Regulations clearly refer to two or
more wards. The Statement in the White Paper that local authorities
are best placed to make the choice as to what constitutes a key
decision is welcomed but early positive advice is now needed.
The provision which prevents the Executive meeting
in private to discuss a matter in the Forward Plan where a decision
is likely to be taken within 28 days is unnecessarily restrictive
and needs to be reviewed.
The provisions of the Act limiting the size
of the Cabinet to 10 should be reviewed with a view to increasing
that number in the case of unitary authorities which have a wider
range of functions than in two tier areas.
It is also considered that DTLR should review
the provision which prevents the Council appointing formal deputy
/substitute members of the executive to act in the absence of
an executive member.
The provisions relating to joint arrangements
have caused considerable confusion by causing existing arrangements
to fall by the adoption of executive arrangements by just one
authority. The requirement to appoint Executive Members to Joint
Committees of less than five authorities carrying out executive
functions is over prescriptive.
3. PART IIICONDUCT
It is early days to make any judgements about
Part III of the Act. The Council recognises the importance of
high standards of conduct of elected Members and officers to the
future reputation and effectiveness of local government whilst
believing that the majority of Members and officers currently
maintain exemplary standards.
In any national system regulating standards
of conduct, it is essential that there is clarity about the required
standards and procedures for dealing with complaints about breaches
of these, not only for the Members and officers concerned but
in order to engender public confidence in the system.
The introduction of the new Model Code and the
National Framework for the development, monitoring and enforcement
of standards of conduct should assist in achieving clarity and
consistency as well as public confidence. In order to do this,
however, the government and the Standards Board need to be pro-active
in issuing guidance and regulations, as appropriate, and to keep
the Code and system under review on a regular basis.
The chief concerns at the moment about the system,
where there still seems to be a considerable lack of clarity,
(a) Uncertainty about the role and remit
of the Monitoring Officer and Local Authorities' Standards Committees,
particularly until regulations are made under Section 66 of the
Act, relating to cases referred back to the Monitoring Officer
by the Ethical Standards Officers;
(b) Uncertainty around the interpretation
of the Model Code which is to be adopted by local authorities
by 5 May 2002 on which Monitoring Officers have to advise until
case law emerges and substantial guidance is issued by the Standards
(c) The adequacy of protection for Members
against ill founded and malicious complaints; and
(d) There is no recognition in the Code or
elsewhere of situations which may arise where there is no prejudicial
interest as defined by the Code preventing a Member participating
in decision making but where there could, nevertheless, be conflicts
of interest which might also affect the validity of the decision
in the light of some recent confusing cases.