Memorandum by Barnsley Metropolitan Borough
I am writing in response to the above consultation
As part of its positive approach to modernisation,
this Authority has already adopted a new political structure based
on the Cabinet/Leader model; incorporating a Local Standards Board.
We therefore welcome the latest document; especially as the consultation
paper and draft legislation appear to accord closely with the
new arrangements which we have adopted in Barnsley.
I am also pleased that the Government are proposing
to revise those aspects of the existing legisaltive framework
which currently impose some constraint on the operation of modernised
structures such as ours (I refer here to measures in the consultation
paper to enable "single party" cabinets throughout local
government; remove the requirement for a separate Social Services
Committee; and to change access to information requirements as
they relate to meetings of the Cabinet).
Our specific comments are set out below, divided
between Parts One and Two of the draft Bill. These comments are
informed by the operation of the Authority's new political structurewhich
has been running now for over three monthsand by the process
of developing it, which itself took 12 months.
I must also reiterate, before setting out our
comments, that the authority is strongly supportive of the consultation
paper and draft Bill, as demonstrated by the action already taken
in Barnsley. Our comments should be read in that context, and
are based on a wish to ensure that the final legislation supports
the most effective operation of the new forms of political structure.
We endorse the broad thrust of the provisions, as they relate
to the Cabinet/Leader model, and you will see that, in the main,
our points relate to the "fine detail" of the proposals.
(a) As already stated, this Authority has
adopted a new structure based on the Cabinet/Leader model. Within
our arrangements, each Cabinet Member is supported by a Deputy.
There appears to be no explicit provision for this within the
draft Bill. The Authority considers that Cabinet Duties form an
important part of the new arrangements, in terms of providing
cover on the unavoidable occasions when Cabinet Members are unable
to attend meetings of Cabinet, Scrutiny Commissions and other
bodies, and also in terms of providing general support within
the portfolio of individual Cabinet Members.
The demands on "executive" Members,
both collectively and individually, must not be underestimated
and we feel that there is a strong case to be made for Deputies
to be explicitly provided for in the new legislation.
(b) The emphasis on consultation with the
public and other stakeholders in determining new political structures
and ways of working is to be welcomed. Indeed, this has been,
and will continue to be, central to our own change process in
It should, however, be borne in mind that consultation
which focuses intially and exclusively on options for different
forms of executive may not produce meaningful conclusions, given
the level of public disengagement from local government which,
unfortunately, exists (and which, fundamentally, the modernisation
measures seek to counter).
This Authority's approach has been to undertake
surveys of public opinionincluding focus groupsaround
wide-ranging issues of local governance, to identify the issues
and principles which should be central to the change process;
in order to deliver the improvements in accountability and responsiveness
which local people are seeking. The process of consultation will
be ongoing, including as part of our evaluation process.
Another point worth making is that our public
consultation suggested strongly that the form of executive is
not necessarily the issue of most interest to local peopleBarnsley
people were generally more interested in structures and processes
to facilitate participation, accountability and responsive delivery
of service within local areas.
I note that the draft bill allows some local
flexibility in the form of consultation and this is to be welcomed,
to ensure that consultation is comprehensive, effective and meaningful
within local circumstances.
( c) I assume that the intention of clause
10(5) of the draft Bill is that in cases, such as my own Authority,
where the Council has already adopted a modernised structure which
meets the requirements of the legislation, and has taken proper
steps to consult the public and other stakeholders as part of
the process, it will be possible to maintain such arrangements
(subject, in our own case, to review every five years). This is
an important issue given the encouragement in the earlier White
Paper for local authorities to take steps in advance of new legislation.
(d) The need to allow for local flexibility
is highlighted by the arrangements we have already made in Barnsley
for the functions proposed in the consultation paper for "overview
and scrutiny" committees. Whilst, in the main, these functions
are provided for by our six Scrutiny Commissions, other aspects
are covered by our Member Policy Workshops and Area Forums.
(e) Consideration should be given to there
being some scope for participation of non-elected persons in any
local executive decisions taken by an Area Committee appointed
by the executive. It may strengthen the co-option of non-elected
persons if they could participate in any executive decisions that
were delegated to area Committees with regard to local matters,
such as where there was a small community fund for local initiatives
(although it should be noted that this does not presently apply
to our own arrangements in Barnsley). The present legislative
restrictions on non-voting co-optees would prevent this if they
remain in their existing form with regard to any committee which
is appointed by the executive to discharge its functions.
(f) I can anticipate that difficulties may
arise in terms of challenges of the validity of decisions by a
Local Authority if matters raised during the scrutiny process
can be cited as definitive supporting evidence. Whether a decision
of a Local Authority is lawful or not should rest upon a proper
examination of the decision making process followed by the executive,
having regard to any reports and other relevant supporting information.
The scrutiny process should not be regarded as a substitute for
such an examination.
(g) The text accompanying the draft Bill
does not make it entirely clear precisely what the executive may
consider in private. There is reference to political discussion
being allowed in private. It is surely appropriate to acknowledge
formally the reality of a structure with an executive whereby,
as with the Cabinet nationally, initial discussion of issues,
together with relevant reports and advice of officers, is undertaken
in private. It is right, as the text goes on to say, that there
should be public access to information about the decisions which
have been taken, including the reasons for them, following an
initial private discussion, with the provision of information
being made available on the basis of existing access to information
It is obviously important that there is lively
debate about controversial important issues, but surely this should
take place in the Council or Scrutiny Committee Meeting and other
public arenas, rather than by all the deliberations of the executive
being conducted in public.
(h) The inference is that access to information
provisions will apply to decisions of the executive with reference
to making the advice of officers available. Careful consideration
needs to be given to any proposals that the advice of officers
will be available to be published in all cases, in addition
to factual material. It needs to be recognised that Public Authorities
take decisions which impact directly upon individuals and organisations.
In seeking to achieve a legitimate public objective, a Local Authority
may unavoidably come into conflict with persons so affected from
time to time. Making advice available without any restriction
would give an unfairly advantageous position to those who may
wish to challenge the decision of a Local Authority.
That decision is purported to be taken for wider
public benefit and these wider public interests would be disadvantaged
in this situation. The Local Authority rightly would not be allowed
benefit of any advice which had been given to any person who wished
to challenge its actions. In particular, with reference to the
provision of legal advice, such an approach would be contrary
to the fundamental principle that communications between lawyers
and their clients should be privileged. It is not equitable that
a Local Authority should be denied the benefit of Solicitor/client
privilege so that it can be advised properly by its legal advisers.
Those advisers are subject to professional regulation which will
provide the necessary safeguards against inappropriate advice,
the existence of which never gets into the public domain, being
(i) In drafting any regulations to specify
what are executive functions there may be certain grey areas.
In particular from our own experience in establishing arrangements
for executive and scrutiny activities in Barnsley, compulsory
purchase orders have caused some difficulty. After full consideration
the view has been taken that these should fall within the remit
of executive decisions and not regulatory (ie non-executive functions)
given that there is a requirement for such an order to be confirmed
by the Secretary of State and there is a statutory procedure to
deal with objections.
(j) The intention is that officers will
be under a duty to appear before Scrutiny Committees. Some consideration
should be given to whether such a duty should be placed upon any
officer employed by a Local Authority. Some recognition needs
to be made that it is the relevant Head of Service who is accountable
to the Local Authority for the delivery of the service and for
the actions of the officers within their service. It is only right
that such accountability is reflected in the legislation. Failings
by individual officers may require action of a disciplinary nature,
but that action would fall outside the legitimate remit of a Scrutiny
Committee and should be taken following the established procedures
which are afforded under the Contract of Employment. No doubt
a Head of Service may decide to ask a colleague to attend a Scrutiny
Committee, either in their place or to assist them, and whether
or not that is appropriate can be dealt with applying principles
of reasonableness under employment law. However, in terms of accountability
and compellability to appear before Scrutiny Committees surely
this should rest with the Head of Service.
(k) There is an implication that representatives
of churches, and also parent governors, will be full voting members
of Scrutiny Committees, rather than the executive. However, whilst
there is a specific reference to the need to abolish the statutory
requirement for there to be a Social Services Committee, there
is no reference to the need to revoke the statutory rights of
Church representatives etc, to sit on a Committee discharging
education functions, such as a Cabinet.
Simultaneously with the draft Bill the DfEE
is consulting on draft regulations pursuant to the Schools Standards
and Framework Act 1998 to make provision for parent governors
to be represented on local government committees dealing with
education matters. It is obviously essential that there is some
co-ordination with the DfEE to ensure that any regulations made
under the 1998 Act tie in with the proposed changes to decision
making structures contained in the draft Bill.
In terms of our own arrangements, the positiondetermined
following discussion with the organisations and individuals concernedis
that former co-optees to the Education Committee are now co-opted
to the Scrutiny Commission which deals with Lifelong Learning.
The position of such representatives, in terms of being consulted
on major issues, is safeguarded in that policy and budget matters
are subject to Cabinet recommendations to full Council, via Scrutiny
Commissions; with the Scrutiny Commission able to refer such issues
back (on one occasion) for reconsideration by Cabinet.
(a) The proposed Code of Conduct needs to
be sufficiently flexible to allow for legitimate participation
by local elected Members in partnerships and other outside bodies.
Provided that such Members do not stand to benefit personally
I would not have thought it would be objectionable, given the
importance of working in partnership which the Government is emphasising,
and which we endorse, for elected Members to be able to participate
in decisions of the Local Authority which affect bodes which they
represent. Clearly an interest should be declared but that should
not prohibit participation in the item of business. Whether voting
should be prohibited is a matter which requires further discussion,
but there is a strong case for Members to be able to influence
the Council process in such circumstances.
(b) Further clarification is required as
to the respective roles of the proposed Standards Board and the
Local Government Ombudsman. Should a breach of the Code by a Member,
as opposed to action by the Authority as a whole, be a matter
entirely for the Standards Board or should it come within the
scope of the concept of maladministration and be a matter for
the Local Government Ombudsman as well? At present the Local Government
Ombudsman takes the rule that breach of the Code is prime facie
maladministration, and of course this presents difficulties
in a sense that the Authority as a whole is not in a position
to control the actions of individual Members. Equally if the conduct
of a Member in breach of the Code has caused an individual to
suffer injustice there ought to be some scope for the Standards
Board to be able to provide some form of recompense.
(c ) Similar statutory protection should
be provided for the Monitoring Officer and the Section 151 Officer
in the same way it has been introduced for the Head of the Paid
Service in previous legislation.
(d) The thrust of the provisions with regard
to the Standards Board and investigations thereunder is that individual
conduct and failings would form the subject matter for examination
rather than the failings of the Authority as a whole. If that
is the case there may be some advantage in expressly making clear
in law that any failure with regard to any Code by one or more
Members of an Authority does not in itself invalidate any decision
taken. This is becoming an area of increasing uncertainty legally.
Adequate safeguards exist through the test which
the Courts have employed under the common law which is that a
decision will be susceptible to challenge if there was a real
likelihood of bias. This may involve the actions of one or a greater
number of Members depending upon the circumstances, but it obviously
does not follow that simply because one or more Members fail to
comply with the provisions of a Code that such a stringent test
of bias has been satisfied. Similar clarity should be provided
with regard to the status of decisions taken where the Local Government
Ombudsman has made a finding a maladministration, where again
the legal position is becoming increasingly uncertain.
(e) There is a strong case for introducing
provisions such that the approach taken by Ethical Standards Officers
should mirror the approach which has been sensibly adopted now
for some time by the Local Government Ombudsman with regards to
investigations. The relevant Authority should be asked initially
to look into the matter and express a view before a decision is
taken whether or not to commence a formal investigation. (Although
it is true that the Local Government Ombudsman now treats all
matters as an investigation, as opposed to the previous approach
of a preliminary consideration followed by an investigation, in
practice they do not commit themselves to the time and resources
of an in-depth investigation without allowing the Local Authority
to comment in the first place). The benefit of an explanation
by the Authority concerned to an Ethical Standards Officer, who
may be somewhat remote from the circumstances regarding the individual
complaint, must be a useful aid in the process in determining
which matters should or should not be investigated in depth. This
would also provide the authority's own Standards Committee with
a more substantial and effective role.
(f) Given the emphasis towards mediation
in the conduct of litigation, consideration should be given to
including scope within the provisions with regard to investigations
by Ethical Standards Officers for complaints to be resolved by
way of mediation, rather than necessarily proceeding and taking
their full course.
One general point I wish to add concerns the
proposed new duty to promote social, economic and environmental
well-being. This relates strongly to the community leadership
role, which underpins the recent changes made, and being developed,
within Barnsley. I consider the new duty to be an integral part
of the modernisation "package" and we would encourage
the Government to introduce the necessary legislation at the earliest
19 May 1999