ANNEX A |
DRAFT PROTOCOL ON INTERVENTION
The draft protocol relates to the intervention powers
in the best value provisions of the Local Government Bill 1998.
It has, however, been drafted with the possibility of extension
to intervention powers in other legislation in mind. The powers
vary in form and process, and the range of actions open to the
Secretary of State. A decision on whether it is possible to cover
all intervention powers in a single protocol, perhaps in a core
text with variations relating to differences in statute between
powers and procedures, will be taken when the Local Government
Bill is in its final form. (See Appendix 2 for a summary of the
main intervention powers to which a general protocol on intervention
Whatever its final form, the protocol will record
an understanding between central and local government as to the
purpose and principles concerning the use of intervention powers,
and the way in which they should be exercised. The protocol cannot
extend, limit or change the powers of the Secretary of State,
or be interpreted so as to fetter his discretion.
The draft protocol is still under discussion with
the LGA, and these discussions are expected to continue at least
until the Bill receives Royal Assent.
The Welsh Office will be developing with the Welsh
Local Government Association (WLGA) a similar protocol for intervention.
The Assembly will have responsibility for intervention and will
wish to discuss the draft protocol to be developed by the Welsh
Office and WLGA in due course.
Draft Protocol on Intervention Powers
This Protocol derives from the Framework for Partnership
signed in November 1997 by the Deputy Prime Minister on behalf
of the Government and the Chairman of the Local Government Association
(LGA) on behalf of local authorities. The Framework provides for
the Government and the LGA to discuss policy for the use of intervention
powers, including how best to facilitate a supportive rôle
for the LGA.
The Protocol gives expression to the shared aim of
central and local government to raise standards in public service,
to support and assist local authorities in improving services,
and to provide a clear framework for intervention by central government
in cases of failure and an orderly process for resumption of service
by the local authority.
The Protocol sets out the general principles which
would underpin the exercise of the Secretary of State's intervention
powers under the Bill, now before Parliament, and the role of
the LGA. The term 'Secretary of State' is used throughout to mean
the appropriate Secretary of State.
Local authorities have a responsibility to deliver
to local people services to clear standards. Local authorities
should set those standardscovering both cost and qualityfor
all the services for which they are responsible. But in those
areas, such as education and social services, where the Government
has key responsibilities and commitments, the Government will
itself set national standards. The best value legislation requires
councils to improve continuously their economy, efficiency and
effectiveness in delivering services and meeting standards.
R&OCIRC;LE OF THE LGA IN HELPING AUTHORITIES AT RISK
Where evidence and experience show that a local authority
is at risk of failing in that duty in respect of a service or
services, there are several ways of achieving improvements. Councillors,
officials and contractors have the prime responsibility for delivering
quality services and addressing shortcomings and failings. The
LGA and the Improvement and Development Agency are committed to
work with local authorities to support improvement where problems
exist, and the LGA encourages its member authorities to give early
warning of potential problems emerging from inspections, draft
reports, complaints, reviews or other sources so that advice and
support can be offered. Support may be offered by other authorities
through networks, or the authority may be helped to identify and
procure other external advice and assistance.
PRINCIPLES GOVERNING INTERVENTION BY THE SECRETARY
- The government will exercise intervention powers
only when there is clear evidence that an authority is failing
either to discharge its functions adequately or failing to meet
its statutory obligations.
- The Secretary of State will inform the authority
of the reasons for intervention whenever using his powers under
best value legislation [and other legislation].
- The form and extent of intervention will reflect
the type and seriousness of failure and the need for effective
- Except in cases of serious service failure or
unless there is a need for urgent intervention, the authority
will normally be given the opportunity to make the necessary improvements
- Best value authorities will provide accurate
and timely responses to requests for information, and co-operate
with such action as the Secretary of State may direct in accordance
with his powers and this Protocol.
IDENTIFICATION OF PROBLEMS
Intervention powers will be invoked on the basis
of clear evidence. Such evidence may emerge, for example, from:
- annual audits of financial accounts;
- audit of local performance plans;
- Audit Commission inspections of fundamental reviews;
- inspection reports;
- public interest reports;
- reports of inquiries, Ombudsman investigations
or judicial findings;
- concerns raised about serious danger or harm
to the public.
Examples of triggers are at Appendix 1.
The authority will be given the opportunity to make
representations about any report which is the basis for a proposed
If necessary, and as urgently as the case requires,
the Secretary of State should make further investigations to ensure
he has all relevant information.
Once the Secretary of State decides that the facts
of the case mean that intervention is likely to be necessary,
he will formally notify the authority and the LGA. The usual sequence
of action would be as follows:
- The authority will be notified in writing of
the improvements the Secretary of State judged necessary.
- The authority will be given until a specified
deadline to produce and publish a statement of action for making
- The statement of action will need to set out
clearly the actions to be carried out, the people responsible,
the costs involved, the intended outcomes, the dates by which
they are to be achieved and the authority's own proposals for
monitoring and implementing the statement of action.
- If the statement of action is acceptable to the
Secretary of State, the authority will be notified, informed how
implementation will be monitored, and given a deadline by which
specific improvements must be completed.
- If the statement of action is unacceptable, the
Secretary of State will notify the authority and the LGA of his
decision to exercise further intervention powers.
- The authority will be given the opportunity to
make representations about the direction proposed.
If monitoring of the statement of action shows that
it is not being implemented effectively, or if the outcomes are
not met on time, the Secretary of State will inform the authority
and intervene as necessary to secure improvements.
If during monitoring of a statement of action evidence
emerges that the authority is failing adequately to discharge
one or more of its other functions, the Secretary of State will
inform the authority of how he intends to proceed, in line with
INTERVENTION IN CASES OF URGENCY
Although the above arrangements will be the norm,
there may be exceptional cases where the severity or persistence
of failure, or the continuing risk of harm or financial loss,
show that urgent intervention is necessary. If these circumstances
prevail, and an authority could reasonably be expected to be aware
of these problems and has failed to take adequate action to address
them, then the Secretary of State retains the discretion to abbreviate
the procedures outlined above as he sees necessary. When intervening
in this way, the Secretary of State will notify the authority
and the LGA of the intervention that is necessary and the reasons
for intervention, and will provide a full explanation of his reasons
for curtailing the procedures.
NATURE OF THE INTERVENTION
The Secretary of State may take such action he judges
necessary to secure compliance by the authority with the requirements
of Part I of the Local Government Act [and other legislation].
This may require, for example, directing the local authority to
act within a specified period to:
- prepare or amend a performance plan;
- follow specified procedures in relation to a
- carry out a review of its exercise of specified
- make sure a function is carried out so as to
achieve specified objectives;
- secure advice/consultancy on the performance
of that function;
- secure the function from a specified provider
or put the function out to tender.
The Secretary of State may also direct a local inquiry
to be held.
A list of the forms of intervention which might be
used are at Appendix 2.
MEDIA RELATIONS AND EXCHANGE OF INFORMATION
Any announcements, publications or press releases
issued in relation to any part of the procedures for intervention
covered under this Protocol will be subject to the agreement set
out in the section titled 'Public Announcements and Exchange of
Information' in the Schedule for Arrangements for the Conduct
of Central-Local Relations under the Framework for Central
In cases where a function is exercised by the Secretary
of State or a person acting on his behalf, the Secretary of State
will regularly monitor the function involved and consider whether
the authority is in a position to resume and sustain effective
responsibility for the function, and will notify the authority
and the LGA of his decision and the reasons for it.
Where intervention is based on a direction which
leaves responsibility for the function with the local authority,
the direction will be lifted when the Secretary of State is content
that the objectives of the intervention can be met on a sustainable
basis. Lifting the direction will not nullify any contracts which
resulted from it.