Memorandum by the Local Government Association
This paper sets out the Local Government Association's
formal response to Local Leadership, Local Choice containing
the draft Local Government (Organisation and Standards) Bill.
The response was approved at the LGA's Policy
and Strategy Committee on 27 May.
Because of the importance we attached to the
issues covered by the draft bill (local authority political management
arrangements and the new ethical framework) and because we wanted
to contribute to the success of the consultation process, the
LGA initiated a hearing (or inquiry) into the draft bill.
The hearing invited submissions from all local
authorities and over 100 partner organisation. The hearing process
has informed this response-but the report of the hearing is published
The LGA will be pursuing the points raised in
this response with Government through the Central/Local Partnership
machinery and will be seeking a full role in the further development
of the bill and subsequent regulations and guidance.
The LGA welcomes the government's initiative
in publishing draft bills and the opportunity to comment on the
draft Local Government (Organisation and Standards) Bill.
The draft bill provides an overall framework
with many of the details subject to regulation and guidance. The
LGA looks forward to working closely with government, as an equal
partner, on the development of the regulations-in the way envisaged
in the Modernising Government White Paper.
It is important that the objectives of change
are not lost in the discussion about structures. We propose a
set of principles against which the legislation and effectiveness
of the models can be assessed.
The community leadership and political leadership
agendas are inextricably linked. The draft bill should therefore
be expanded to include the proposed new duty (and accompanying
powers) for local authorities to promote the economic, social
and environmental well-being of their areas.
The introduction of a separate executive offers
the potential to improve existing arrangements but may not suit
the wide variety of different local authority types and circumstances.
A model based on an "improved committee system" may
better secure the objectives of change in some cases.
The new political leadership arrangements will
only work effectively if they are locally owned. The temptation
for national prescription in the draft bill and regulations should
be avoided. Maximum discretion should be retained at a local level
in line with Article 6 of the European Charter of Local Self-Government.
The LGA supports the thrust of the proposals
for a new ethical framework which enhances local government's
reputation in terms of probity and accountability.
The process for handling complaints of misconduct
should command respect and provide for as rapid a resolution of
complaints as is consistent with thoroughness and natural justice.
Further consideration should be given to the role of local standards
committees in the operation of the new ethical framework.
The draft bill implies a huge cultural change
agenda for local authorities. The statutory framework and local
constitutions must provide flexibility for changes to be made
as lessons are learned.
1. The Local Government Association represents
every principal local authority in England and Wales including
all 238 shire district councils, 36 metropolitan district councils,
34 county councils, 47 English shire unitary authorities, 33 London
boroughs (including the City) and 22 Welsh unitary authorities.
In addition, the LGA represents fire authorities and passenger
transport authorities. As such, the LGA provides the national
voice for local communities in England and Wales; its members
represent over 50 million people, employ more than two million
staff and spend over £65 billion on local services. This
response has been prepared in consultation with the Improvement
and Development Agency and Employers Organisation and takes into
account their comments.
2. We welcome the opportunity to comment
on the draft Local Government (Organisation and Standards) Bill.
We commend the government for its initiative in publishing draft
bills and we hope that this consultation process will lead to
a greater consensus on the proposals and for better legislation.
3. The LGA has sought to play a full and
constructive part in the consultation process and to stimulate
debate at a national level and in localities. An important part
of our work has been the hearing (or inquiry) into the bill chaired
by our President, Lord Hunt. The Hearing has invited evidence
from all local authorities and over 100 professional and representative
organisations involved in local government. The work of the hearing
has informed this response. A copy of the report of the hearing
is published separately.
4. Whilst therefore we welcome consultation
on the draft billand hope that this is a precedent that
will be followed on other issuesit must be noted that the
bill provides little more than an overall framework and that many
of the detailed issues that will determine how the proposals on
political management and the new ethical framework might work
in practice are to be the subject of subsequent regulation by
the Secretary of State. We have therefore restricted our observations
in this response to some of the general issues arising from consultation
with our member authorities.
5. However, we do believe that it is now
important that central and local government work closely together
in developing the regulations and guidelines that will underpin
the bill's broad framework and that which will have a significant
impact on the way the legislation will work in practice. The LGA
wants to work constructively with government as an "equal
partner" on these issuesin the way envisaged in the
Modernising Government White Paper. We very much see this
initial response as the commencement of an on-going dialogue on
the proposals. An early signal of the government's commitment
to proceeding in this way, with a timetable for discussions, will
help ensure that the momentum for change in authorities is not
The objectives of the draft Bill
6. The debate about new political structures
in local government has been dominated by discussion of directly
elected mayors. This in part, no doubt, reflects the prime minister's
perceived preference but may also reflect the difficulty in describing
the application of the Westminster model to local government.
We believe that this has been unhelpful. It has polarised opinions
around a single modeland sidelined constructive debate
about the objectives of change.
7. We believe that it would be more helpful
to the progress of the modernisation agenda to focus first on
the objectives of change. We have therefore developed a set of
"principles" which we believe reflect the shared objectives
of government, local government and local people. These principles
fulfil a number of helpful functions. They will:
focus debate on the objectives of
change. We think that this will be helpful in spreading ownership
of the agenda more widelyas exemplified by the Best Value
provide a "benchmark" against
which provisions in the bill and the regulations can be examined;
provide a framework for developing
a set of measures against which the operation of the new models
can be assessed.
8. We would welcome the government's support
for the principles and its agreement to use them in the way we
The modernisation process comprises a number
of distinct themes:
Best Value/Quality services.
High ethical standards.
These themes are inter-related and mutually
reinforcing. Legislation is needed in some areas to progress these
proposals and support local authorities in their modernisation
Local people should be involved in the process
of determining the form of political leadership structure which
is most appropriate to their locality.
Political leadership structures should facilitate
clear and visible political leadership and direction within local
authorities and by the authority in representing its area and
Political leadership structures should enhance
local authorities' accountability and responsiveness to local
communities. Local people should know who is taking decisions.
Democratic renewal and involvement
Structures should contribute to the democratic
renewal of local communities and facilitate the involvement of
local people in decisions that affect their lives.
Openness and transparency
Decision making processes should be open and
transparent. Local people, non-executive members etc. should know
where and when decisions are being taken and the reasons for them
Structures should provide for more efficient
and effective decision making processes leading to speedier, better,
decisions taken in a less resource intensive way.
Structures should provide powerful roles for
all councillors, comprising:
ability to question/review executive
ability to initiate and undertake
in-depth reviews of specific areas of the council's activity
ability to review and develop policy
determining policy in council
ability to represent local ward/division
concerns through the structure and act as a "champion"
for their area
ability to influence/input to executive
decisions affecting their area
playing a lead role in consultation
in their ward/division
Structures need to be locally owned if they
are to work effectively. There is no one right structure.
Political leadership structures should deliver
high standards of conduct and support the objective of increasing
the trust held by local people in their authority.
9. New structures will only work effectivelyand
achieve their objectivesif they are owned locally. Maximum
discretion should be retained locally to tailor models to local
circumstancesin line with the provisions of Article 6 of
the European Charter of Local Self-Government.
The case for change
10. The deficiencies of the traditional
committee system have been well documented and it is clear to
us that a system developed 100 years ago to administer a range
of individual services is not designed to support modern local
government's primary role of providing leadership and vision in
11. Many local authorities have recognised
this. They have developed and modified the system to suit the
changing role of local government and the needs of their localities.
Audit Commission reports have provided a helpful stimulus and
source of advice in this process. It would be wrong to base the
arguments for change on the deficiencies of a system that largely
no longer exists.
12. Nevertheless, the development of new
political management arrangements does offer the potential to
clarify decision-making processes;
enhance local accountability;
facilitate strong visible and accountable
facilitate the development of more
rewarding roles for all councillors.
Alongside changes to decision-making processes,
we also recognise the need for a modern ethical framework which
enhances local government's reputation in terms of probity and
13. The LGA has encouraged member authorities
to take a positive approach to this agenda. At the LGA's annual
conference in July last year, Sir Jeremy Beecham, Chair, LGA,
called on all local authorities to take action on five key areas
as evidence of local government's intent to renew civic leadership
and reinvigorate local democracy. The five areas were probity,
best value, community leadership, democratic renewal and modernising
The momentum for change
14. In November last year we asked all local
authorities about their progress in implementing change in the
five key areas. The survey results demonstrate the extent of local
government's progress on the reform and improvement agenda:
on politicial leadership, 81 per
cent of authorities have recently reviewed or have in progress,
plans to consider an executive/representational split;
74 per cent have already taken or
have in progress steps to open up committees to the public;
on probity, 37 per cent of authorities
already have a standards committee in place or in progress with
a further 44 per cent planning this in the future;
87 per cent have a code of conduct
for employees in place or in progress.
15. The findings on political leadership
are mirrored by the early findings of a research survey on political
leadership commissioned by the LGA/IDA Democracy Network, and
undertaken by De Montfort and Strathclyde Universities, between
October and December 1998. Early results reveal that 75 per cent
of responding authorities had reviewed their committee structures
in the last three years and that two-thirds had examined the proposals
in the White Paper Modern Local Government: In touch with the
16. It is important that this momentum for
change is not lost. We share the government's desire (expressed
in the postscript to Local Leadership, Local Choice) for
local authorities to continue to make progress in advance of the
requirements of legislation. The draft bill's proposals carry
huge cultural change for local government and it is important
that authorities begin to address this agenda of change as soon
17 But if the momentum for change is to
be sustained, authorities will want to be assured that they will
not be penalised for being pioneers. They will want to know that
they will not be required to "unpick" large components
of interim models introduced in advance of legislation because
they fail to meet some of the detailed aspects of the regulations
and guidance which are still to be drafted.
18. A particular problem has already arisen,
for example, on the question of local consultation. Local Leadership,
Local Choice makes it clear that local authorities must consult
properly. But proper consultation in this context is not defined
in the draft bill and it is not clear what weight should be attached
to the comments about consultation in the covering paper. Will
authorities that consult extensively on the options before introducing
interim arrangements now or coming to a conclusion about the model
to be introduced following Royal Assent, need to consult again?
Early clarification of the government's intentions would help
to enable those authorities who wish to make progress now, to
19. The government should adopt an open
and inclusive process to the development of the regulations and
guidance in partnership with local government. Local authorities
are, we believe, likely to be more confident about responding
to the action set out in the postscript to Local Leadership,
Local Choice if they can see that the regulations and guidance
are to be the result of a joint work programme between central
and local government-which they could contribute to and be kept
informed of as the work progresses. It will therefore be important
to signal this joint approach, to develop a timetable and to commence
the process as soon as possible.
The modernisation agendathe new duty
20. We have always seen the proposals for
change set out in the White Paper Modern Local Government:
In Touch with the People dealing with community leadership,
political leadership, local democracy, probity and finance as
a composite package. Many of the proposals inter-relate and arguably
work most effectively in creating a modern system of local governance
when supported by each other. But we accept the realities of the
parliamentary process and the pressure on time which effectively
prohibits the proposals, being taken forward together in one measure.
21. However, we do believe that there are
strong arguments for enlarging the draft Local Government (Organisation
and Standards) Billparticularly by the inclusion of the
proposed new duty to promote the economic, social and environment
well-being of the area, and the accompanying enabling powers,
as envisaged in the White Paper.
22. This new duty, as set out in the white
paper, confirms local authorities' role in community leadership.
It is intended to provide an overarching framework for local government.
It is to enshrine in law the role of the council as the elected
leader of their local communitywith a responsibility for
the well-being and sustainable development of its area. Local
authorities are to be at the centre of public service locally,
to take the lead in developing a clear sense of direction for
their communities and building partnershiips to ensure the best
for local communities. The new duty is to be underpinned by a
discretionary power enabling councils to take steps to promote
the well-being of their area. The community leadership and political
leadership proposals are inextricably linked.
23. Community leadership-the prime function
of modern local government-should be the driver for how local
authorities then organise themselves. The new political leadership
arrangements are clearly designed to support and work within the
context of community leadership. A local authority executive can
provide a clear public focus for leadership in the community (through
community planning and partnerships) in order to focus the combined
work of agencies operating in the locality on community priorities
and needs. It is difficult to see how the executive will properly
fulfil this potential role in the absence of the supporting legislative
base for community leadership.
24. The inclusion of the new duty would
also help strengthen the role of non-executive members
as a representative of their own localities. Much greater emphasis
is now being given to the importance of "joining things up"
locally. This needs to occur at an authority-wide level but also,
at a locality or neighbourhood levelwhere service providers
and programmes meet to deliver services to local communities.
Many authorities are reflecting this new emphasis in the development
of locality or neighbourhood forums providing a vehicle for initiating
discussion with local people and partners. Some authorities are
taking this a stage further and developing locality or neighbourhood
community plans. The inclusion of the new duty in the draft bill
would strengthen the representative role of non-executive members
and may, as a result, also help to smooth the introduction of
the new structures.
25. In short, we do not believe the models
will achieve what they are designed to achieve unless they are
set within the context of community leadership, the new duty and
accompanying powers. These proposals should be included in the
26. The government should also take the
opportunity to widen the bill to provide for the changes to members'
allowances and support for councillors discussed in the white
paper. In addition, the DETR's Public Service Agreement with the
Treasury includes the commitment to put in place a local business
rate. Consultation with local authorities on the detailed arrangements
for the local rate are expected shortly. Provision for the introduction
of a local business rate should now be added to the draft bill.
2 AND 3 OF
PART 1 OF
Applying the principles
27. Other models: We welcome the
flexibility in the draft bill to allow the Secretary of State
to designate additional alternative models from which local authorities
may make a choice. The common feature of those models identified
to date is that they must involve a separate executive. We are
not yet fully convinced that the Whitehall model involving the
separation of the executive is appropriate in all circumstances,
or that it will always achieve the proposed objectives of change.
Some of the features underpinning the Whitehall model-a two/three
party system, majority rule, strong internal sanctions-do not
always apply. Many local authorities have a variety of political
groups and nearly 40 per cent have no overall control. A number
of local authorities-particularly the smaller, more rural authorities
and those less dominated by party politics-argue that none of
the three modes will work better in their circumstances than their
current arrangements based on a radically improved committee system
that is far removed from traditional arrangements
28. This is not an argument for the retention
of the old traditional committee structure. That is not tenable.
However, we do believe that it may be possible to develop an alternative
model based on an "improved committee system" that in
some circumstances better meets the principles and objectives
of change than the three white paper models. Such a model might
be characterised by:
strong role for the full council;
a radically reduced number of committees;
streamlined working of committees
(removal of information only items, etc);
absence of strong party politics;
greater delegation to officers;
greater opportunities to involve
members in policy development;
new system of members' allowances.
29. Given that the government has already
accepted that the committee system can remain where a referenda
for a directly elected mayor falls, we believe that it would be
sensible for the legislation to provide for a model based on an
"improved committee system" (as outlined above) where
this can be demonstrated to better meet the objectives of change
(as set out in the principles) than the models set out in the
Local Leadership, Local Choice.
30. Local ownership It is clear
that no political leadership structure will of its own guarantee
the delivery of certain perceived benefits. A lot will depend
on the dynamics of the structure, the personalities involved,
party rules, and whether there is a willingness to make the models
work. Local ownership of the models is therefore essential-and
we acknowledge and welcome the potential flexibility the bill
provides to tailor the models to local circumstances.
31. The potential diversity of approach
is already clear from those authorities that are pioneering changes
now. These are illustrated in the LGA's recent publication Leading
the Agenda. No doubt additional variations will emerge in
32. We are concerned at the potential tendency
to prescribe some detailed aspects of the models in the bill (for
example the size and composition of the executive) and at the
wide ranging powers for the Secretary of State to prescribe, via
regulation, how particular aspects of the models will work, for
the form and broad parameters of
the functions of the executive
the operation and functions of overview
and scrutiny committees
the conduct of referendums and the
conduct of mayoral elections
the size, proceedings and the functions
of standards committees.
33. A full list of the Secretary of State's
powers to issue regulations and guidance is attached at
Annex A. (Not Published) These provisions sit unhappily against
the commitments of the Better Government White Paper to
reduce unnecessary burdens and avoid regulation for the sake of
it. We are not convinced that these wide-ranging powers are all
required or could not be exercised by other bodies. We will want
to ensure that the regulations and guidance provide a framework
for change that is facilitating and enabling rather than prescriptive.
34. Local authorities recognise the importance
of involving local people in choices that affect their lives and
have led the public policy agenda on participation and involvement.
The proposed requirement to involve local people in choosing the
most appropriate model for the authority develops similar provisions
in the Local Government (Experimental Arrangements) Bill.
35. But we do not think that the difficulties
of engaging local people on this issue should be underestimated.
Local people are much more interested in what authorities do for
them than how they are structured to take administrative decisions.
One way of generating local debate could be to clarify beyond
doubt local authorities' powers to conduct local referenda and
to allow authorities to put a full range of options to local people
through the referenda process. However, experience demonstrates
that these are complex issues which may also require the use of
a variety of other mechanisms to engage local people in order
to ensure that their "informed" views emerge.
36. The proposals for binding referendums
are similar to those set out in the white paper. Notwithstanding
the potential prospect of an authority being required, as a result
of a local referendum, to introduce a model that it is itself
unwilling to promote, the introduction of binding referendums
in local government raises a host of interesting and complex issues.
the form of the proposition to be
put to local people and how consensus for it is secured.
the provision of information to local
people in order to facilitate informed debate
the role of campaigning
whether turnout thresholds should
be set before the vote becomes binding
what mechanisms should be used to
conduct the referendum-would using alternative polling methods
(eg telephone voting, all postal ballots etc) help increase participation
should referendums be held at the
same time as local elections
how the cost of local referendums
should be met.
37. The LGA's recent discussion paper Local
Referendums and Citizens' Ballots identifies these and other
issues and seeks to initiate the debate.
38. One thing is clear however-if the result
of a binding referendum is to be accepted without complaint then
it will be essential to develop a broad consensus around the referenda
process and the framing of the individual propositions to be put
to local people. This consensus is more likely to be achieved
by an independent body since central government is seen to support
a particular result. It may well be that the proposed Electoral
Commission should be asked to develop proposals for the conduct
of local referendums and to advise on the setting of local propositions.
The role and operation of the executive
39. Executive functions: The assumption
in the draft bill underpinning the allocation of functions between
the executive and council is that unless specified otherwise all
matters of council business are to be executive functions.
40. Whilst we understand the need to exclude
certain functions from the executive (for example agreeing strategies,
approving the budget and tax levels, quasi-judicial decisions,
etc) we believe that greater local flexibility and ownership could
be secured by allowing the council to determine the allocation
of functions to the executive. But we agree with the role of the
council outlined in para 3.9 and that the role and responsibilities
of the executive should broadly be those outlined at para 3.29
of Local Leadership, Local Choice, ie to:
lead the community planning process;
lead the preparation of plans and
consult and draw up the annual budget,
including capital plans, for submission to the full council;
lead the search for best value;
take in year decisions on resources
and priorities to deliver the strategies and budget approved by
the full council, consulting with other councillors and stakeholders
in the local community as necessary;
be the focus for forming partnerships
with other agencies and the business and voluntary sectors locally
to address local needs.
41. Size of the executive: We agree
that smaller executives will, on the whole, tend to work more
effectively than larger onesthis is certainly one of the
lessons emerging from the simulations being conducted for individual
local authorities by the IDA. However the rigid application of
the constraints in clause 2(7) (that the executive may not exceed
whichever is the smaller of 10 or 15 per cent of the total number
of councillors of the authority, rounded down) is likely to cause
a number of unnecessary practical difficulties. For example:
for authorities with small membership
where executive members could be overburdened by the weight of
their responsibilitiesthis will particularly be the case
in unitary authorities with a limited number of councillors. For
example, in a small unitary such as Rutland County Council with
only 20 members, this would prohibit an executive larger than
it may also artificially prevent
authorities from organising the allocation of functions in a way
they would like to. Some authorities have said that it could inhibit
them developing a mixture of service and cross-cutting portfolios;
it may inhibit the development of
multi-party executives. Some authorities have said that the size
limit will make it more difficult to secure political balance
or the involvement of other parties in the executive.
The size of the executive should be a matter
of local discretion.
42. Supporting the executive: We
are concerned that the proposed limit on size, combined with the
provisions preventing the executive from delegating functions
outside of the executive (other than to officers) could lead to
the executive becoming overburdened with day to day decisions
concerned with the running of the authority. This could prejudice
the executive's ability to focus externally and to provide civic
and community leadership.
43. The new arrangements should provide
sufficient flexibility to allow individual local authorities to
develop locally appropriate arrangements to support the executive
in its functions. Some authorities are already doing this, for
by the appointment of deputies who
support the executive member in the exercise of their duty. They
may attend meetings of the executive when the executive member
is unable to do so, act as a consultee on delegated decisions
in the absence of the executive member, receive copies of all
by the appointment of small policy
panels or reference groups who work with individual executive
members, act as a sounding board for decisions and help formulate
recommendations on issues related to their portfolios;
by designating individual members
as advisers on particular topics.
44. Devolved decision-making: We
are also very concerned that the bill appears to fail to recognise
the place of devolved decision making structures at an area or
locality level in the work of local authoritiesand the
important contribution such arrangements can make to the democratic
45. A number of local authorities have long-standing
and in some cases substantial devolution arrangements and others
have introduced them in the context of their new models. As the
bill is currently drafted it appears that devolved arrangements
would only be able to deal with non-executive functions. We believe
that executives should be given the freedom to delegate executive
decisions to area or neighbourhood committees where they deem
it appropriate to do so.
46. We agree wholeheartedly with the need
to develop powerful roles for all councillors in the new arrangementsand
with the broader definition of scrutiny that the proposals envisage.
There is considerable potential to develop more rewarding and
constructive roles than those offered to the majority of members
by the traditional committee system.
47. We also agree with the need to develop
strong mechanisms to facilitate the scrutiny of executive decisions
and monitor how the executive is implementing council policy.
The legislation and regulations should provide for this, for example,
through a statutory requirement for all councils to establish
at least one overview and scrutiny committee.
48. However back bench members will also
have a number of other important roles (as Local Leadership,
Local Choice recognises), for example:
as representative of their ward/division;
in examining particular areas of
Considering and investigating broad policy issues
and undertaking in depth reviews of areas of council activity
may be better undertaken through structures specifically designed
for these purposes. We hope that the bill and regulations will
provide substantial flexibility for individual authorities to
determine how these other roles are exercised.
49. As currently drafted the proposals do
not appear to allow non-executive members, in their capacity as
ward/division representatives, to input the views of their constituents
to the executive decision making process before decisions
are taken. This could undermine the importance of the ward representational
roleespecially, if, as is implied, the government see no
need to introduce arrangements to veto or "call in"
executive decisions (other than in the directly elected mayor
model). A number of authorities have already introduced such mechanisms
as part of their new arrangements and we hope this flexibility
will be retained.
Support for councillors
50. The LGA welcomes the government's view
that the culture of the modern local authority needs to be reinforced
by the system of financial support given to councillors. Councillors
are still too often significantly financially disadvantaged as
a result of their public duties, yet authorities often feel constrained
by hostile local comment (mainly media based) from arriving at
realistic levels of allowances in their local schemes, particularly
for leading members. The use of independent panels has helped
in this regard and many authorities are already making use of
this approach. However, we feel that the government could help
in setting the climate of opinion. In the past, governments have
been too ready to criticise local authorities for setting levels
of allowances which would be considered restrained in any other
field of activity.
51. The LGA remains firmly committed to
the principle of local discretion in setting schemes of allowances,
but will be happy to work with DETR to produce guidance on approaching
the setting of levels of allowances appropriate to local circumstances.
An early indication of the government's timetable for the abolition
of attendance allowance would be helpful. The LGA would also want
to see an early start to the review of travel and subsistence
allowances. This need not await the passage of legislation.
52. Whilst welcoming the recognition by
government of the need for the allowances system to reflect the
roles of senior members, (including the possibility of pensionable
salaries); we remain of the view that other issues also need to
the operation of the benefits system
still impacts unfairly on those elected members in receipt of
benefits, and should be addressed in discussions with LGA.
a clarification (and, if necessary
amending legislation) of the ability of local authorities to pay
carers allowances to councillors and to provide a range of technical
and equipment support to enable them better to undertake their
duties in the new arrangements.
53. The development of new member roles
will also require practical support. We believe that it is inevitable
that some authorities will want to assist non-executive members
in their functions by providing dedicated officer support. Indeed
some have already begun to move in this direction.
Meetings and access to information
54. Clarity as to the rights of access to
information for non-executive members of the council and the wider
public will be essential in the move to new management arrangements.
It will be necessary to re-examine the proposals in the bill in
the light of the content of the draft Freedom of Information Bill.
55. Whilst the proposed principles in the
consultation document relating to access to information appear
in general to address the outward flow of information from an
executive (or mayor) to the wider council, the media and the public,
they relate to action to be taken, and information to be made
available, once decisions have been taken. No reference is made
to the ability, under the existing system, for councillors, the
media and the public to be aware of issues before decisions are
made through the receipt of agendas and supporting papers. Particularly
affected, as mentioned above in para 49, are likely to be non-executive
councillors when decisions related to their locality are taken,
or, indeed, the public in the area. Whilst the paper discusses
possible arrangements for a veto for an elected mayor, no such
proposals are put forward for any referral or delay mechanism
for non-executive councillors.
56. Moving away from long-standing and well
understood practices on access to information and meeting administration
will require the development of local protocols which will ensure
the essential clarity referred to above. Issues of access and
meeting protocols ought to be matters on which the local standards
committee could provide guidance and resolve disputes.
57. Clarity on the requirements for recording
decisions is also crucial both to ensure a timely and adequate
record and to provide a robust audit trail of decision making.
Responsibility for arrangements for recording decisions and the
reasons for them should rest with an officer of the authority,
whatever the source of that decision. The government should therefore
reconsider its proposal that, where a decision is taken by an
individual member of an executive, that person, and not an officer,
would be responsible for ensuring that the necessary record is
58. The issue of whether or not officer
recommendations to executives should be published is a difficult
one. At present, committee reports available to the public will
usually contain an officer recommendation. However, it is a moot
point as to whether such information is an essential element to
an understanding of how and why a decision was reached. More crucial
will be information on the range of options considered; the arguments
in support of the options and other background information. It
is intended that such information, unless coming with an exempt
category, would be available to the public-and all would be available
to a scrutiny committee. In those circumstances, information as
to specific officer recommendations may not contribute significantly
to a consideration of the merits of a decision. On balance, therefore,
we believe that decisions on whether officer advice should be
published should not be a matter for national prescription, but
should be left to local protocols. The approach to this proposal
may also be affected by any proposals, relating to policy advice
from civil servants, in the draft Freedom of Information Bill.
4 OF THE
II OF THE
59. The LGA reiterates its support for the
thrust of the government's proposals for a new ethical framework.
The recognition in the consultation document that "the vast
majority (of councillors) operate in a conscientious and professional
manner" is welcomed.
60. But we also accept that modern local
government requires councillors and officers to enter into a more
complex set of relationships with other private and public sector
partners and alternative service providers. This complexity in
turn requires greater clarity in the codes governing appropriate
member and employee behaviour, which adequately reflect these
new relationships and which enable councillors to fulfil their
responsibilities with confidence.
61. It is important to remember that the
focus of the ethical framework is standards of conduct, not corruption,
or other actions amounting to abuse of office, which are dealt
with through other legislation. The association hopes therefore
that there will be no undue delay in abolishing the present surcharge
provisions and bringing forward the new offence of abuse of public
National codes of practice
62. An updated and clarified National model
code is central to the ethical proposals and we welcome the invitation
to develop it in the light of the general principles of conduct
set out in the white paper. This work will need to reflect the
greater complexity of relationships mentioned above, and, in particular,
ensure that particular attention is given to those occasions where
councillors need to balance competing interests in a fair and
63. The present national code applies to
councillors when they represent their local authorities-on a whole
range of outside bodies. The extent to which the provisions of
the new code should similarly apply to the conduct of councillors
serving on outside bodies-and the impact of that approach for
the conduct of business of those bodies-will be a significant
element for consideration. Increasingly, councillors serving on
such partnership bodies are liable to conform to the national
code; elements of company legislation and requirements under charity
law-all of which may, in certain circumstances, be in conflict.
Furthermore, they will be serving with partners whose representatives
may be under less demanding or no ethical codes. The ability of
a local authority to indemnify a councillor acting as its representative
on another body should also be clarified, so that such community
involvement is not inhibited by doubts as to the councillor's
64. Comments have been made that it may
be necessary to develop separate codes for elected mayors or members
of executives. Our basic approach is that questions of probity
and ethical conduct ought to apply equally to all council members,
whatever their position. The greater the individual's powers,
the greater the necessity to ensure that probity standards are
adhered tobut this is not to argue that those standards
should be differentiated. So whilst not wishing to dismiss this
proposal in advance of detailed consideration of the revised code,
the LGA would be disappointed if separate codes were subsequently
thought to be necessary. It will, however, be necessary to be
clear, in an elected mayor model, what would be the appropriate
procedure for decision-making in cases where the elected mayor
has an interest.
Standards committees and the National Standards
65. The investigative and adjudicative system
to handle complaints of misconduct should command the respect
of both the public and councillors as to its integrity, transparency
and fairness. It should also provide as rapid a resolution of
complaints as is consistent with thoroughness and natural justice.
The structure proposed by the bill appears, as a process, to go
a long way to meet these objectives, but there are concerns.
66. The association has argued for greater
powers for local standards committees to give initial consideration
to complaints received against councillors, an approach originally
proposed by the Nolan Committee. The government has not accepted
that approach and the draft bill appears to require that all written
complaints are referred in the first instance to the National
Board for consideration. The government has accepted that there
will be uncertainty in the early stages as to the volume of complaints
which will be received by the National Board. There is concern
that this approach could lead to an overload of the national system
in its early months. In particular, given that any unresolved
complaint against councillors will reflect on their reputations,
we are concerned that the new system should adequately address
the potential for abuse for party political purposes. It must
also be able to deal speedily with trivial, vexatious and possibly
67. 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. Alternatively, the final bill
needs sufficient flexibility to permit an expansion of the role
of local committees in the light of experience of the operation
of the new regime enabling complaints to go first to local standards
committees, once the new regime has settled down. There are doubts
that local standards committees limited to a training and advisory
role, (crucial as that role is), may have difficulty in attracting
independent persons to serve.
68. The government should also revisit the
proposal under Clause 36 that in the event of an Ethical Standards
Officer finding no evidence of misconduct, he must produce a report,
which must be published in a local newspaper. Whilst this has
the wholly laudable aim of ensuring that a councillor's name is
seen to be cleared, it seems a lengthy procedure for dealing with
such instances. The NSB needs to have some faster method of handling
trivial cases. It should be clear that if the evidence does not
justify an investigation, then an ESO should be in a position
to say so at the outset.
69. Clause 32(7)(c) provides for a finding
that a matter under investigation should be referred to the local
authority standards committee. However, the bill is silent on
the powers open to a local committee in dealing with the referral
and in particular, the sanctions available to it which might be
applied to individual councillors. An early indication of the
governments thinking would be welcome.
70. The bill sets out a minimal framework
for the composition of local standards committees, including an
independent element. Whilst this outline generally reflects the
approach taken by those authorities which have already established
such committees, it does preclude the establishment of committees
consisting wholly of independent members, or joint standards committees.
The government should reconsider whether it would want to prevent
such an approach, or whether the powers under Clause 30(4), permitting
the Secretary of State to regulate the exercise of functions by
standards committees, are necessary.
71. Whilst the proposed process for the
operation of the investigatory and adjudication functions of the
NSB and adjudication panels appear fair in relation to the separation
of these functions, we are concerned that the process is capable
of delivering judgements as quickly as possible. The length of
time taken by the District Audit Service and the justice system
to deal with serious allegations under existing audit legislation
is a serious concern, and lessons need to be drawn from the experience
of the District Audit Service in handling recent cases, to ensure
as far as it is possible that the new system delivers speedier
conclusions. The Commission for Local Administration also has
extensive and valuable experience in handling national complaints
systems, which should be drawn upon.
72. When councillors are accused of misconduct,
it is not clear what support and advice can be offered by the
council or its officers. Whilst provision is made in the bill
for the payment of costs, because the accusation is against the
individual and not the council, there is uncertainty as to whether,
and if so, under what circumstances, the council might be able
to provide the councillor with advice and other assistance during
an investigation-for example, where councillors may have been
advised by their standards committee and monitoring officer that
a course of action was in accordance with the code.
The monitoring officer
73. Whilst reference has been made earlier
to the role of officers in the new structures, we would wish to
comment specifically on the role of the monitoring officer in
the new probity arrangements.
74. The monitoring officer will, as the
government recognises, play a crucial role, both in support of
the local standards committee and in relations with the NSB. Yet
there is, as yet, little detail as to the scope of this role and
in particular the way in which the post will inter-act with the
NSB in investigating complaints. Clearly there is potential for
tension between the role of the monitoring officer in advising
the standards committee and individual members on the implications
of the national and local codes; and any role after a complaint
of misconduct has been made. There is a case for early guidance
on this area, in discussions with the LGA and appropriate officer
societies. The government should also consider providing protection
for the post in line with that presently provided for chief executives,
as envisaged by the white paper. Similar protection might also
be afforded to the statutory post of finance officer.
75. There should also be an examination
of the requirements placed upon the monitoring officer under Section
5 of the Local Government and Housing Act 1989, particularly in
relation to reporting requirements on legislative breaches and
maintenance of registers of interest, to ensure consistency and
76. The government should also consider
whether the present ability of a chief executive to hold the post
of monitoring officer remain appropriate under the new management
Code of conduct for employees
77. The LGA welcomes the opportunity to
work with government to develop the statutory code. We would expect
to build upon the model of the existing voluntary code, which
has been adopted by the great majority of local authorities. A
revised code will need to pay particular attention to new and
evolving relationships both between members and staff and groups
of staff in the new management arrangements.
78. The LGA and IDA have re-issued their
voluntary advice note on procedures to deal with "whistle-blowing".
Work on developing the Statutory Code for Employees will need
to take account of its advice.
79. The LGA welcomes the opportunity to
comment on the draft Local Government (Organisation and Standards)
Bill and the proposals contained within it. We look forward to
working closely with government on the regulations and guidance.
80. The alternative political leadership
models offer the potential of providing more rewarding roles for
all councillors. But structures of themselves will not deliver.
How the models work in practice will depend on a number of factorsincluding
the role of the party groups. It is unfortunate that the opportunity
to test the models in individual authorities prior to their introduction
on a national basis, which would have been provided for by the
Local Government (Experimental Arrangements) Bill, was lost.
81. The proposals also involve a huge agenda
of cultural change for councillors and officers. New skills, expertise
and ways of working will need to be developed to support and develop
the new roles. The Improvement and Development Agency will have
an important role to play in supporting the implementation of
82. It will be important to safeguard flexibility
at a national level (to amend the regulatory framework) and at
a local level (to amend local constitutions) in the light of the
lessons that will emerge as authorities introduce and operate
the new arrangements.