Memorandum by the Local Government Information
We welcome the publication of the draft Bill.
The publication at draft stage will encourage local government
to review proposals and to contribute from their already very
considerable experience on introducing new structures, and maintaining
The Bill provides a useful opportunity for local
authorities to review how their member-level structures operate
in the light of new challenges of community leadership, partnership
and best value. Many councils are already extensively involved
in this. Councils will be able to use the opportunity of the draft
Bill to comment on what is proposed and how it can be made more
The LGIU has responded in detail to the "Modernising
Local Government" Green Papers and White Papers, and these
responses are still available. Here we highlight some key issues.
Our response makes some comments on the scope of the draft Bill.
This is followed by our views on Part 1 and Part 2 of the draft
THE SCOPE OF THE BILL1. DUTY
New powers and duties, as well as new structures,
will be essential for establishing an effective role for modern
local government and addressing difficult cross-cutting issues.
The White Paper "Modern Local Government: In touch with the
people", seeks to address the constraints upon local government
by proposing legislation to place on councils a duty to promote
the economic, social and environmental well-being of their areas,
linked to powers to give effect to community planning and partnerships.
No decision has been made on the implementation of these proposals,
which should enable councils to act more effectively and with
greater flexibility on behalf of local people, and which are clearly
integral to achieving the government's aims.
Unless provision is made in the draft Bill to
give effect to the objectives underlying the new structures, the
legislation will introduce the form needed for increasing local
democracy without providing councils with the capacity to meet
the expectations of local people. The Bill should be amended to
include the duty to promote the economic, social and environmental
well-being of the area, and include the new powers and responsibilities
on community planning and partnerships.
2. SCRUTINY POWERS
We believe that the development of scrutiny
and community planning requires a duty on other public bodies
to become partners in community planning at a local level, and
to respond to scrutiny. This would contribute to the government's
desire for "joined up government" at a local level,
and benefit many areas of concern, such as environmental protection
and sustainability, social exclusion, and health improvement.
In previous consultation papers the government
has identified the need to modernise legislation on voting, to
enable improvements to voter registration, and new forms of voting
such as electronic voting, comprehensive postal ballots, multiple
voting points, and so on. These changes, possibly initially as
pilots, would be very welcome to local government and help the
essential task of improving voter turnout. It is disappointing
the draft Bill does not include these measures.
4. LOCAL GOVERNMENT
The Bill gives councils considerable power to
determine their own constitutions. In many ways this potential
for diversity and local choice is welcome. However there may be
issues, which could include the regulation of referenda, and decisions
about voting systems, where there is a need for some independent
regulation. This applies both to the range of powers available
to councils to determine their own constitutions, and to the potential
relationships of local government to the new devolved bodies.
We note that the proposals apply to England
and Wales. Many of the powers given to the Secretary of State
to exercise in England, would in Wales be the responsibility of
the National Assembly for Wales.
The decision to devolve powers to Scotland,
Wales and probably Northern Ireland, has major implications for
local government. In many ways this decentralisation is welcome.
However, it needs to be considered whether there is a need for
some constitutional protection for local government. The devolved
bodies, and potentially English regional bodies, could have great
power in relation to local government, and we need to find the
right framework within which this is exercised, to ensure stability
and avoid opportunist political decisions.
THE DRAFT BILL, PART 1: NEW POLITICAL STRUCTURES1. SUMMARY
The draft Bill will provide for the introduction
of new political constitutions and structures in local government,
having an executive/representative split. Directly elected mayors,
cabinets or council managers can be introduced.
There is provision for referenda on directly
elected mayors, called either by the council or by public petition.
We believe that legislation should allow for
the maximum diversity of structures to be developed as a consequence
of the draft Bill. 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))
The explanatory notes to the Bill suggest that
the regulations for Option 4 will follow "at a later date".
Depending on the timing of the Bill (not all clauses will necessarily
have to come into force at the same time) there may, or may not,
be scope for diversity to develop.
We would support greater diversity of possible
structures. This would give greater scope to respond to local
circumstances and to local consultation.
Two areas where wider choice is wanted are to
allow decentralised executive power, and in relation to the Mayor/Council
Decentralisation: not currently covered in the
Bill is an option to enable greater decentralisation of decision-making
within a council. This would allow primary emphasis on decision-making
arrangements on a geographical rather than service principle.
This could encourage public involvement, particularly in large
areas where the population is dispersed. Legislation could give
greater powers for counties to delegate some service delivery
to districts, and for both to be able to delegate to larger town
and parish councils/community councils.
At present, the Bill would allow neighbourhood
structures as an adjunct to a centralised executive, but they
would be primarily concerned with advice, consultation and scrutiny.
Legislation should also allow decentralised rather than centralised
Council managers: it is not clear why a council
manager must be combined with a separately elected mayor and not
with a leader with executive powers who is elected by the council.
Both options should be available.
We have moved from the Hunt Bill proposals for
experiments with structure, to legislation which requires permanent
change. It is important not to lose completely the emphasis on
the need to evaluate new structures. It would be useful to have
proposals to monitor the effectiveness of new structures, as Clause
2(5) may provide an opportunity to revise the legislation in the
light of experience.
3. THE EXECUTIVE/REPRESENTATIVE
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. It will be damaging if most councillors
feel marginalised from decision-making and feel they cannot control
the services the council provides, particularly for their own
ward constituents. We need arrangements which encourage good candidates
to put themselves forward for election for all types of position
and role. Councillors from minority parties could feel particularly
marginalised, and the importance of opposition councillors in
effective scrutiny should not be ignored.
The role of full council
The requirements for certain functions to be
prescribed in legislation as functions of the whole council is
welcome. To the current list we would add:
All appointments to external bodies;
Decisions to set up local authority
Determining procedures for award
of contracts, and oversight of award of contracts above a certain
The award of contracts above a certain sum should
be a formal and public process, either by the Executive meeting
in public, or a small committee of the council.
The council as a whole will continue to be the
employer. It may therefore need to have some kind of personnel/human
resources committee to undertake the overall industrial relations
function. The executive having responsibility for this function
could undermine the sense that employees are responsible to the
council as a whole.
It is particularly important that the full council
approves the constitution of the council, in order to protect
against structures which would remove too much responsibility
from the full council.
This could include arrangements for calling
in or vetoing of decisions of the mayor or executive. There could
also be categories of decision which could be "called in"
for consultation by, for example Parish councils.
The executive will need to build confidence
in order to ensure that the full council is not involved in too
many decisions. Openness and a willingness to consult informally
will be important elements of this.
The council and best value
The requirements of best value need to be "owned"
by the full council. Advice from the DETR confirms that best value
requires the engagement not only of the "political leadership"
of the authority but of other elected members too. This will require
their input into authorities' strategic objectives and corporate
priorities on which performance plans will be based. It is important
that the full council should also approve the best value performance
These plans will in turn underpin the programme
of reviews. Non-executive councillors will have an important role
in the review and scrutiny process. Again, the DETR advises that
elected members need to be fully engaged, not only scrutinising
current performance but also communicating the needs of the local
people they represent.
The executive role
The maximum size allowed for the executive will
be 15 per cent of the council or 10, which ever is smaller. We
believe that a limit of 15 per cent is over-prescriptive. A wider
range should be possible.
To maintain confidence, it may be important
that the executive represents a reasonable range of the community,
such as different areas, minority groups and areas of service
interest and expertise. This may be of concern to the public too.
The executive is described as having a leading
role in forming partnership arrangements for the area. It is important
that the full council is also involved in this, having scrutiny
or confirming appointments, for example, and being involved in
larger policy issues. Some partnerships are of a very local character,
for example some area regeneration, and it would be important
to involve the local non-executive councillors.
The scrutiny role
It is vital to have an effective scrutiny role
and integrate this with public consultation arrangements and other
requirements of best value. There will need to be clarity about
what is meant by scrutiny, as it can take various forms: whether
scrutiny of decisions before implementation; scrutiny of the implementation
of programmes, strategies, and budgets; scrutiny of outcomes,
probably linked to performance review; scrutiny of external organisations.
Scrutiny bodies might be standing bodies, covering the main service
areas, or time-limited bodies set up for a particular review or
The scrutiny role provides great potential to
develop a constructive role for non-executive councillors. It
is important that it is able to be critical but without being
seen as a vehicle for opportunist party politics.
Although the executive will be allowed to be
a single-party body, presumably Committees of the Council will
still be governed by legislation about proportionality. This is
probably appropriate for functions such as planning. Presumably
there will be more flexibility for scrutiny bodies which do not
have executive power.
An increasing range of services are provided
by partnerships, external bodies and so on, such as Primary Care
Groups, regeneration partnerships, environmental partnerships,
as well as contractors and voluntary sector bodies. This poses
new challenges for the scrutiny role, as the accountability of
such bodies is often unclear.
The ward role
Other than when there is a separately elected
mayor, all councillors will have a representative role. It is
important to enable all councillors to fulfil their ward role
effectively. It is likely that this would be particularly important
to the public.
The public will assume that ward councillors
have an involvement in decisions which affect their ward. However,
for non-executive councillors (the large majority) this could
not be the case. Councils will need to find ways of involving
ward councillors in decisions which affect their electors. The
public could also be concerned that some councillors (the executive)
have much greater powers; this could lead to a two-tier status
of councillors which will not have public support. It is vital
that executive members are not able to use their position to give
disproportionate resources and facilities to their own wards.
We welcome the emphasis on public consultation
in local government. The representative role of each councillor
and public consultation must be linked. Forms of consultation
and community involvement in decision-making have an important
role within scrutiny and best value reviews, and therefore must
be led by all councillors, not just the executive.
Parish and community councils provide an important
vehicle for consultation in many areas, and it will be important
that new executive arrangements do not diminish this.
The executive could lead the emphasis on consultation
by their own example, publishing drafts of various proposals for
consultation, to involve both all councillors and people outside
the council. In some cases the council as a whole could require
this of their executive.
The ceremonial mayor
Many towns and cities currently have a ceremonial
mayor who performs a wide range of public duties. It is usual
that the mayoralty is held by a different councillor each year,
and is a non-party-political role. Although in some cases this
derives from the Local Government Act 1972, we question that it
is only (as "local leadership, local choices" states)
"in a very few cases" that the mayoralty is long-established.
Suggestions that this be abolished have generally proved unpopular
with the public.
If the introduction of directly elected leaders
and more focused executives is to be effective, it is questionable
whether the leader of the council should take on the ceremonial
role of the mayor. This would either prove too time-consuming,
or the apolitical civic role would probably be much reduced, and
changed by being carried out over several years by a high profile
4. FREEDOM OF
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.
There is expected to be greater delegation to officers, so this
will involve decisions which will no longer be made in public.
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 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 publish 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 be a loss of information to non-executive
councillors. In particular, elected councillors will not have
a right 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. There
could be a requirement for Executive 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. If officers are preparing
"political" advice for members of the executive then
this should also be published, or clear criteria should be given
within which the Executive can receive confidential policy advice.
The Executive could also meet in private, with or without staff,
for more informal discussions.
In some cases, the Executive could publish a
timetable as to when they would be taking particular decisions.
Rules will also be needed on decisions of the
Mayor as an individual, and cabinet members as individuals. It
will need to be clarified what decisions must be taken formally
rather than informally by an individual, particularly the mayor:
there will need to be requirements to publish these formal decisions.
The rights of access to information of councillors
should be clearly defined and there should be a requirement on
the monitoring officer to inform all members of their rights.
The Standards Committee could ensure this happened.
The possibility of a procedure for non-executive
councillors to delay decisions of the executive, receive further
information and refer the decision to the full council should
There should be duty on the executive to consider
and respond to proposals put to them by other councillors.
Allowing the Executive to meet in private is
also a major loss of access to information for the press and public.
The public and media will lose access to information before most
council decisions are taken. This is not in line with the emphasis
on consulting and involving the public.
Whatever the problems of the committee system,
it has ensured a great deal of public, transparent decision-making.
The government is committed to a new Freedom of Information Act
covering the whole public sector. This could resolve some of the
problems, but it is unlikely to require information to be published
before decisions are made, or decisions to be made in public.
5. PARTY RULES
The executive/scrutiny split will not work if
party discipline is used to prevent or restrict critical scrutiny
of the executive. If the cabinet is chosen by the mayor or leader
rather than the whole council, Members of the council may feel
their chances of advancing to an executive position rely on being
uncritical of the present executive.
Closed meetings of political groups may actually
become more important as non-executive members of the majority
group seek to influence executive decisions. This pressure would
be reduced if information on Executive decisions had to be published
in advance, as mentioned above.
With a council with no overall majority control
and a separately elected mayor, the mayor will need to negotiate
with the various political groups to win support for his/her programme.
It is not substantiated that the new structures would significantly
reduce the amount of decision-making which takes place behind
6. THE ROLE
The consultation paper recognises the necessity
of clarifying the role of officers in the new arrangements and
proposes possible models for the relationships between officers
As in the existing system, the chief executive
officer and chief officers will be responsible to the council
as a whole. In the new structures however, it is envisaged that
the majority of officers will spend most of their time supporting
the executive and will account for executive decisions to councillors
outside the executive.
We would be concerned that the balance between
support for the executive and the scrutiny roles is the right
onethe suggested model does not seem to provide enough
support for the overview and scrutiny committees.
It will be important that officers are not put
in difficult situations in relation to their dual role in being
accountable to both the executive and the non-executive parts
of the council and in having to "account" for executive
decisions. Under existing arrangements, officers have to balance
their support for the council's leadership with their duty to
the whole council but the tensions this can cause will be exacerbated
in a structure with a strong executive or mayor. Councils will
need to be very clear as to accountabilities in these circumstances.
The House of Commons Select Committees have
separate staff and independent advisors. It seems likely that
for scrutiny to function effectively it will need staff who have
this as their primary role.
LGIU has recently commissioned a research report
on the implications of the Bill for officer/member relationships
and will make this available as soon as it is complete.
7. SUPPORT FOR
Training, resources and facilities
The chief executive will have responsibility
for ensuring that councillors receive increased levels of support.
It is envisaged that this will be made possible in part by support
from officers released from existing committee obligations. It
would be sensible if minimum standards of support could be recommended,
linked to monitored service guarantees.
All the proposals on allowances and remuneration
for councillors in the White Paper remain on the government's
modernising agenda. It will be possible to provide salaries for
executive positions. Councils will be obliged to get an independent
local panel to produce non-binding proposals on allowances.
We welcome the government's intentions in trying
to ensure that councillors do not suffer financial hardship through
serving their communities, and it is right that the government
look at differing levels of allowances to reflect new structures.
The LGIU's observations on the detail of the
government's proposals for allowances, made in our submissions
on the White Paper, are still relevant and we will respond further
when their plans are available in full. Some points of principle
do need emphasis:
It must be regretted that the government has
not addressed the problems which face councillors on benefits,
which result in benefits subsidising their council duties.
It is also of concern that the government has
not accepted that, in the absence of either a national standard
for allowances, or of new money, it is likely that many councils
will be unable to take up the options for allowances and salaries
because of fear of negative publicity.
We are concerned that no mention is made of
the intention expressed in the White Paper of clearing up any
confusion over the legality of payment towards the cost of childcare
or care for elderly or disabled people, so that councillors can
engage on council duties. The present situation, where some councillors
are advised that such payments are ultra vires, while other councils
run successful schemes, should not be allowed to continue into
the new era.
We welcome the recognition that councillors
lose earnings and pension rights because of time spent on council
duties. Although we welcome the possibility of pensionable salaries,
these issues will continue to arise for many councillors, not
just mayors and executive members. Any new arrangements should
enable this problem to be tackled for all councillors, if we are
not to discourage public service in all the new roles.
PART 2: ETHICAL FRAMEWORK1. SUMMARY
The main proposals on which the new ethical
framework are based are:
each authority should adopt a Code
of Conduct for members, based on a national Code;
each authority should establish a
Standards Committee to deal with issues of probity and regulation,
which would have at least one independent member;
there should be a national Standards
Board, with powers to investigate complaints about probity including
breaches of the Code of Conduct, and Adjudication Panels able
to act as tribunals and impose various penalties.
We broadly welcome the government's plans to
establish a new regulatory framework, and create clarity and consistency
about the rules for councillors.
How this new framework will operate will not
be entirely clear until we see the proposed national code and
the legislation for the proposed new offence of Misuse of Public
Office. At present the relation of what is proposed in "Local
leadership, local choice" to existing legislation appears
At present, it is a statutory requirement to
maintain a register of pecuniary interests. Failure to declare
such an interest can lead to police investigation, and potentially
a court case with criminal penalties. There are also a range of
relevant laws on corruption, fraud, theft, and so on which could
apply to councillors.
As the draft Bill does not appear to include
repeal of any existing legislation, it appears the statutory requirement
to maintain and publish a register of interests should be maintained.
We assume failure to declare pecuniary interests would still be
a potentially criminal offence.
Possible breaches of the Code of Conduct would
in future be dealt with by the Standards Board. The range of penalties
would include disqualification but not the criminal penalties
of fines or prison. This provides a complex framework for different
probity issues. However, removing the criminal offence would be
a weakening of regulation.
We welcome the government's restatement of its
intention to repeal surcharge legislation. We believe this should
happen as soon as possible. It is proposed to link the abolition
of surcharge to the new proposed offence of Misuse of Public Office.
Depending on the timing of the two pieces of legislation this
could mean surcharge would apply to new structures, at least initially.
This could involve individuals, particularly the mayor in substantial
individual liabilities. Speedy abolition of surcharge is therefore
4. CODE OF
The Code of Conduct needs to reflect the different
constitutions which will now be introduced. However, there would
otherwise be benefits from national consistency: this would be
clearer for the public. It would also be fairer, given that the
Standards Board and linked tribunals will be judging and imposing
a nationally determined range of penalties. It would also make
it easier to provide consistent advice for members.
It is important that the Code of Conduct gives
particular attention to the framework of regulation needed when
there is a single person executive; a separately elected mayor.
With a strong single person executive would come an increased
reliance on informal decision-making and personal influence. It
would be easy for example for the mayor to have inappropriate
influence over recruitment decisions and promotions, or the award
With either a mayor or cabinet, the Code of
Conduct needs to provide adequate regulation for situations where
there will be a substantial range of decision-making without the
presence of opposition councillors, the public or press.
The Bill requires the Standards Committee to
have at least three members. One would be from outside the council,
and not more than one would be a member of the executive. The
independent element is welcome. However, the requirement could
lead to no members of minority parties being members of the Standards
Committee. Even if formal "whipping" does not apply,
there could be informal collusion giving the Committee dominance
from the majority party. We believe that if a council has members
from minority parties, there should be a requirement to have them
represented on the Standards Committee.
6. ROLE OF
As the paper says, it is hard to predict the
volume of complaints the Board will receive, but it is important
it is sufficiently resourced not to get a backlog of cases.
It is important that investigations are carried
out according to principles of natural justice, including rights
of those under investigation to be informed and represented.
An important role for the Standards Board would
be to provide elected members with legal advice and second opinion,
and to publish guidance aimed at a consistent interpretation of
conflict of interest.
It would also be an important role for the Standards
Board to publish easily accessible information for the public
on how to make a complaint. There is potentially a wide range
of bodies: the District Audit, police, Ombudsman, as well as the
Standards Board, whose role needs to be clear to the public.
It is also vital that regulation provides for
the increasing range of structures, which are used for service
delivery, including local authority owned companies, partnership
bodies, contractors and grant-aided bodies. The present proposals
do not give this sufficient attention.
8. CODE OF
In principle we support this and look forward
to consultation on its content. It is important that trade unions
and other bodies representing employees are involved in negotiation
about its requirements.
The investigation by the Nolan Committee and
others have shown some problems of officer/member relationships,
and there have been various proposals, such as staff/member protocols,
to help improve this situation. The introduction of new political
structures involving the separation of executive functions raises
important new issues for officer/member relations. In particular,
there are likely to be pressures on the staff to work for the
executive rather than the whole council. There could be tensions
between the executive and scrutiny role, and it needs to be possible
for staff to provide active support for scrutiny, and for non-executive
councillors, for it to be effective.