Memorandum by Brighton and Hove Council
1. GENERAL POINTS
1.1 Brighton and Hove's approach to modernisation
Brighton and Hove Council welcomes the publication
of the bill as a draft as this allows local authorities to input
into the development of these proposals in a meaningful way. In
our authority, the experience gained by councillors from initiatives
such as community planning, joint advisory panels and best value
formed the basis of our review of the democratic management structure.
Our new interim structure (pending legislation) was adopted by
the council on 14 April 1999 and is based on six key roles for
community representation and advocacy
statutory committee duties
and the additional role of leader.
The attached diagram (Appendix 1) shows the
proposed interim democratic management structure for Brighton
and Hove. The proposed structure is drawn as a circle or wheel
to demonstrate the inter-relationships of the key roles as these
are seen as crucial to the success of the proposals. Brighton
and Hove councillors are keen to emphasise the fluidity of the
structure in terms of:
the "cycle" of policy formulation,
development, adoption, implementation, scrutiny and accountability.
the movement of councillors between
the roles of policy development, scrutiny, community consultation,
Copies of the job descriptions for each of the
councillor roles are attached as Appendix 2.
As the full changes to a "cabinet"
model cannot be introduced until such legislation is in place,
the council knew that it either had to await such enabling legislation,
or that it may use the intervening period to move in a phased
way to the final model, subject to consultation. The council has
adopted its new structure early as it believes that moving to
an interim model following the May 1999 elections has the benefit
of providing a "development period" in which new roles
for councillors and officers can be learned. This approach has
been chosen, because as stated in the DETR press releases, these
changes represent a complete overhaul of council structures which
have remained basically unchanged for over 100 years. An interim
period will allow the council to evaluate new ways of working,
with citizens, customers and stakeholders to ensure that the proposals
meet the fundamental aims. This process begins with two focus
groups in June. The authority has also joined the evaluation group
at Inlogov for a wider independent evaluation.
1.3 Community Planning and the duty of well
In preparing for democratic management changes
Brighton and Hove councillors organised into two working groups.
The Democratic Management Group looked at the inward focus of
how best to organise to ensure transparency and accountability.
The second group, the Community Participation Group looked at
our outward focus, and the aims of increased involvement and democratic
renewal. The two clearly overlap and this council had hoped to
see the duty of well being and guidance on community planning
in this bill.
Community leadership is supposed to be at the
"heart" of modern local government and this certainly
is the case in the model adopted by Brighton and Hove. Brighton
and Hove would therefore urge government to include the new duties
and powers for community planning and social economic and environmental
well being (ie community leadership) alongside the proposals for
political leadership. This would bring the new and powerful role
for all councillors to life.
1.4 The divide between policy formulation
Cycle of "policy formulation", adoption,
scrutiny etc. The bill isn't clear enough about the inter-relationship
between policy formulation and scrutiny (this stems from the original
problem of the term scrutiny being used to cover policy development
as well as post hoc consideration of a matter). It needs to be
clearer on the "overview and scrutiny functions" to
ensure that councillors aren't unnecessarily locked out of the
policy formulation process.
Brighton and Hove's model has lead councillors,
working with the executive to develop and recommend policy and
performance improvements and we believe this thinking is further
ahead than other council's thinking. Would it comply with the
legislation as it is currently written? ie the lead councillors
having a direct link to the executive councillors (although their
role is advisory)
Equally the findings of scrutiny need to inform
the work of the Executive.
1.5 Freedom of information and open decision
Within the current framework of access to information
legislation covering local government, the new proposals reduce
the rights of members of the public to have access to information
about decisions to be taken by their council and its components.
At present agendas and papers for the council
and its committees must be available to all relevant members of
the council (including opposition councillors) well in advance
of the meeting, and to the press and public at least three days
before the meeting at which the decisions are to be taken.
These requirements will continue to apply to
full council, its committees, and to scrutiny committees, but
not to executive decisions. The Mayor or cabinet will make a wide
range of decisions. Although there will be a requirement to public
these decisions after they have been made, it is not proposed
they are required to meet in public or to publish agendas and
papers in advance. This is a major loss of openness.
Although the paper states that the executive
will be required to publish their decisions and factual and background
papers, this will take place after the decision has been made,
and no time frame is given as to how quickly this must take place.
This will mean a loss of information to non-executive
councillors. In particular, elected councillors will not have
a right to know in advance of decisions which directly affect
their ward, such as a decision to close a service in the area.
This undermines their representative role.
We believe this should be reconsidered. In Brighton
and Hove we have set up a series of protocols to ensure that papers
are available prior to meetings and that most meetings are held
in public. These protocols are attached as Appendix (3). There
could be a requirement for executive board meetings to take place
in public, and with papers published in advance. As at present,
there could be a list of exceptions for which the executive could
meet in private, with officer advice and support. The executive
could also meet in private, with or without staff, for more informal
2. PART ONE:
1 OF BILL)
2.1 Arrangements with respect to executives
The proposed new forms of local governance
provide for a separation of the executive to give "leadership
and clarity" to decision taking. This is linked to making
local government more efficient, transparent and accountable.
Brighton and Hove supports the proposals
for a separation of the executive and has based its new structure
on the fundamental aims of:
Delivering a streamlined decision-making
Delivering services within best
and believes that this separation also furthers
the aims of making local government more transparent and accountable.
To ensure transparency in decision-making
processes protocols have been developed and agreed by the council
and are attached for information as Appendix 3.
In Brighton and Hove accountability will
come not only through the scrutiny process but through the protocols
that require local consultation and relevant involvement prior
2.2 Form of the Executive (s 2)
The Bill sets out four options:
(1) a directly elected mayor with an executive
(2) a council leader with an executive
(3) a directly elected mayor with a council
(4) "such form . . . as may be prescribed
in regulations made by the Secretary of State" (Clause 2(5)).
Brighton and Hove Council recognises that within
each of the three models put forward there is scope for local
variation. However, we would want, through the evaluation of our
interim structure and public consultation, to test out whether
there are other possible structures. Depending on the timing of
the Bill there may be scope for greater diversity to develop.
These changes are recognised as the most fundamental changes in
local government for over 100 years and early lessons learned
should, if at all possible, help influence the legislation. It
may be that Clause 2(5) may provide an opportunity to revise the
legislation in the light of experience.
Clause 2(5) indicates that other forms for local
authority executives may be prescribed by the Secretary of State.
An early indication of what these may be would assist LA planning.
Vital, given suggestions to move to early implementation.
Is there to be provision for a deputy in the
second model? (Clause 2(3)).
Brighton and Hove Council would be keen to participate
in such an evaluation.
In relation to the size of the executive the
draft Bill suggests that:
The number of members of a local authority executive
which takes the form specified in subsection (2) or (3) may not
exceed whichever is the smaller of the following numbers:
(b) 15 per cent of the total number of councillors
of the authority (disregarding any vacancies).
The proposals for size of the executive are
based on the presumption that a smaller team will be highly visible
and have clear areas of responsibility. The model Brighton and
Hove is piloting currently has nine executive councillors out
of a council of 78 members. These councillors are however supported
by 19 lead councillors to advise on particular areas of policy
and strategy. This arrangement recognises the breadth of the executive
councillor portfolios and also helps the council to look at its
services in a more customer focused, holistic way. Examples of
the lead councillor portfolios include Young People, Early Years
and lifelong learning. It also supports Brighton and Hove's approach
which is based on getting the decision right in the first place,
through effective consultation and involvement.
We would support the LGIU's views that the executive
should represent a reasonable range of the community, such as
different geographical areas, communities of interest and service
interest and expertise.
Clause 2 (7)(a) What would cause the Secretary
of State to amend the size of the local authority executive?
The proposals state that membership of the executive
would normally be formed by the majority party or a coalition.
The interim structure adopted by Brighton and Hove has a majority
group executive because this seems to most closely reflect the
vision of personal accountability and responsibility linked to
specific portfolios. However, we will look at other models currently
being tested during our evaluation.
2.2.4 Executive functions (s.3-6)
Local leadership, local choice s.3.29 states
what the executive role should cover.
In all the new forms of local governance, the
executive will have wide ranging leadership roles. It will:
lead the community planning process;
lead the preparation of plans and
consult on 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; and
be the focus for forming partnerships
with other agencies and the business and voluntary sectors locally
to address local needs.
Brighton and Hove Council supports this view
of how an executive should function and sees as key to its success
the complimentary roles of partnership working, scrutiny and consultation.
Clause 3 (2)it is essential for LA planning
to see the draft regulations relating to "executive functions"
as early as possible. Moves towards early implementation will
otherwise be severely hampered.
Will regulations cover the relationship between
the executive and other parts of the council eg council itself,
other committees and sub-committees?
Will the regulations cover the relationship
between an officer with named executive delegations, other officers
and the statutory officers?
2.3 The executive/representative split (s.7)
and the overview of scrutiny committees
Fundamental to the success of the new models
is getting an appropriate balance between the role of the executive
and the council as a whole. Councillors will only be attracted
to work in authorities where all contributions are seen as worthwhile
Executive arrangements by a local authority
must include provision for the appointment of overview and scrutiny
(a) to scrutinise the discharge of the executive
(b) to make reports and recommendations to
the authority or the executive on matters relating to the discharge
(i) the executive functions of the authority;
(ii) other functions of the authority which
are connected with those functions.
2.3.1. The role of scrutiny
In Brighton and Hove the role of scrutiny will
monitoring service performance and
critical success factors;
scrutinising policy outcomeseg
the implementation of strategic priorities;
scrutinising and reviewing policies
and practices within a cross-service remit;
considering the outcome of best value
reviews and how they have been acted upon;
holding executive councillors and
chief officers to account; and
submitting reports to Policy and
Resources Committee through the executive board in writing, to
the Scrutiny Management Committee and to council if necessary.
The scrutiny role is crucial to the new democratic
management structure and will require officer support, both in
terms of administrative support and research.
2.3.2 Scrutiny Management
In addition to the four scrutiny boards, this
council has set up a small Scrutiny Management Committee of seven
It is composed of non-executive councillors
and will be politically balanced. It will meet monthly to consider
requests for scrutiny, agree the work programmes of the Scrutiny
Boards and receive their findings.
The Scrutiny Management Committee will:
receive and consider requests for
scrutiny and will determine the means for scrutiny in each case.
In carrying out this function the committee will have regard to
resources available and will ensure that the same matter is not
scrutinised by more than one board/review;
consider any Notices of Motion requesting
scrutiny signed by six or more councillors;
receive all the final scrutiny reports
as part of its management function. The Scrutiny Boards will issue
their reports to the executive board in waiting, and the Policy
and Resources Committee for attention, and can require the reports
to be sent to council;
monitor the resources allocated by
council to the scrutiny function;
agree and allocate the portfolios
for the Scrutiny Boards;
agree the work programmes for the
Scrutiny Boards and allocate requests for scrutiny to the appropriate
scrutiny function (board or one-off review); and
submit an annual report, and further
reports as necessary, on the scrutiny function of the council.
This model has been set up to ensure full, efficient
and thorough scrutiny and may be of interest to other authorities.
Clause 7will "overview" and
"scrutiny" be defined? Is there a difference between
Will regulations include a veto of executive
Will regulations provide a penalty for non-compliance
with the duty to attend scrutiny committee meetings?
The Brighton and Hove model respects the division
between scrutiny and executive, with no member of the executive
sitting on a scrutiny board. However, there will be lead councillor
involvement in some scrutiny roles. This is seen as beneficial
to the process as a whole as the expense built up in developing
a policy proposal can then best be used in evaluating the impact
of its implementation.
2.4 Proposals for the executive and referendums
(S10 and 11)
Every authority is required to draw up proposals
for the operation of its executive arrangements and send this
to the Secretary of State, setting out which form of executive
it wishes to take. If such a proposal includes an elected Mayor
the authority must hold a referendum on the proposals before taking
steps to implement them.
We note that the Secretary of State will publish
regulations on the conduct of referenda. We believe issues these
regulations need to cover include unbiased wording of questions,
the time-tabling of referenda, particularly where there has been
a public petition, regulation of campaign expenditure including
any use of public money, and rules for the council itself in producing
"Local leadership, local choice" expresses
the view that in consulting the public, a range of options should
be put and not "a single favoured option". We believe
that if referenda are to be required, it would be more consistent
with this approach to allow a referendum on any of the new options,
or a multi-option referendum. We are also concerned about how
informed the public can be on the differences or impact of models
which are very new and untested in many ways and so believe a
test period with the public involved in evaluating will help make
the process easier to take part in and more interesting.
Just as there has been concern about low turnout
for elections, there could be low turnout for referenda on elected
mayors. Although the cost of referenda would be reduced by holding
them on the day of another election, the cost could still be a
deterrent. Brighton and Hove recently held a referendum on a local
Clause 11Holding a referendum only once
every five years makes it very slow.
2.5 Publicity on new arrangements (S12)
Brighton and Hove supports the proposals for
ensuring a wide range of publicity on new structures as soon as
practicable after passing its resolution to operate its executive
arrangements. In most cases this will be information that follows
a high profile campaign of informing the public of the proposed
changes and actively seeking their views on how best to carry
2.6 Referenda following petition and the power
of the Secretary of State to require referendum (S14 and 15)
The draft bill states that:
The Secretary of State may by regulations make
provision requiring a local authority which receives a petition.
(a) signed by not less than 5 per cent of
the local government electors for the authority's area, and
(b) requesting a referendum on whether the
authority should operate executive arrangements under which the
executive takes the form specified in either section 2(2) or (4),
to hold such a referendum in such circumstances as
may be prescribed in the regulations.
And also that:
The Secretary of State may by regulations make
provision enabling him, in such circumstances as may be prescribed
in the regulations, to require a local authority to hold a referendum
on whether they should operate executive arrangements under which
the executive takes one of the forms specified in section 2(2)
While the council recognises the need for these
requirements to be put in place it would clearly be a failing
on the Local Authority not to lead this debate on new democratic
Clause 16Guidance. Very difficult to
comment without seeing it.
2.7 General points raised on the bill (and
the document Local leadership local choice)
Clause 22Referendums should not be limited
to every five years if the LA wishes to hold advisory referendums
on local matters.
Clause 23Regulations. These must cover
a re-drafted 2.101 Local Government Act 1972.
GenerallyPoints from consultation document
not in the Bill.
Paragraphs 2.1 and 2.7 implies much
wider consultation on forms of executive than in Clause
10(3) of the Bill.
Paragraph 3.15 implies that scrutiny
work will be limited to scrutinising the work of the executive.
Scrutiny should cover all council functions including regulation
functions. It would make sense for regulatory functions to form
part of the work of the executive (see paragraph 3.10).
Paragraph 3.18 implies that scrutiny
committees would not have delegated authority from the full council.
From where will their powers be drawn?
3.59Executive to provide reasons
for its decisions. Will guidance/regulations cover this?
3.62This paragraph suggests
that the executive may not follow officer advice due to political
considerations. This could lead to potentially unlawful decisions
and would need very careful guidance if the advice is given
by a statutory officer. Otherwise a S.151 or monitoring officer
report could be issued.
3.64Failure to properly record
a decision being a criminal offence. Who would be liable under
the criminal sanction? Does it include the monitoring officer
or other officer or will it be limited to councillors? How will
the criminal offence be enacted?
3.69Guidance must cover
the exercise of the Mayor at veto and an acceptable form of reasons.
3. PART TWO:
3.1 Clause 27Should include a provision
for public consultation on the local codehow else can an
LA establish what is right and what is wrong in the eyes of local
people with whom confidence should be maintained.
Clauses 32-36Generally acceptable but
could be very time consuming if there is no filtering process
ie need to avoid a repeat of years of Westminster investigation.
Guiding principles on the conduct of investigation would assist.
Clause 37What legal powers can the local
authority use to suspend councillors? And from what? Guidance
is needed on when suspension is likely to be invoked.
Clauses 40 and 41This seems strange and
cumbersome. Why not extend the jurisdiction of an existing Court
or Tribunal and maximise existing expertise and judicial appointments?
What is the status of a decision by a body corporate?
Clause 42Should include a discretion
for a local code based on a national one. Many LA's have "localised"
the national LGIU model.
Generallypoints from consultation document:
Member/officer protocols are missing.
4.18 Covers the role of the monitoring
officer. This is not in the Bill.
Relationships with the Police and
the Ombudsman are not covered in the Bill.
4.29Should be in the Bill.
4.36Censure by the Adjudication
panel is not covered in the Bill. What is its status?
20 May 1999