Contents
1
Foreword
Summary
Introduction
Principles
Political leadership arrangements (chapters 2
and 3 of the consultation paper and part 1 of
the draft bill
Conduct of local authority members (chapter
4 of the consultation paper and part 2 of the
draft bill
Conclusions
Annex A
Draft Local Government (Organisation and
Standards) Bill
Secretary of State's power to make
regulations/issue guidance
2
3
4
6
11
17
21
22
Foreword
2
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
organisations. The hearing process has
informed this response - but the report of the
hearing is published separately.
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.
May 1999
Summary
3
* The LGA welcomes the governmenťs 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 suite 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 governmenťs 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.
Introduction
4
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 bill ­ and hope that
this is a precedent that will be followed on
other issues ­ it 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 bilľs 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
issues - in 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
governmenťs commitment to proceeding in
this way, with a timetable for discussions, will
help ensure that the momentum for change
in authorities is not disrupted.
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 model ­
and sidelined constructive debate about the
objectives of change.
7. We believe that it would be more helpful
to the progress of the modernisation
5
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 widely ­ as
exemplified by the Best Value principles
* 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 governmenťs
support for the principles and its agreement
to use them in the way we have identified.
Principles
6
Modernisation. The modernisation process comprises a number of distinct themes:
* Community Leadership
* Best Value/Quality services
* Democratic Renewal
* 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 process.
Local choice. Local people should be involved in the process of determining the form of political
leadership structure which is most appropriate to their locality.
Leadership. Political leadership structures should facilitate clear and visible political leadership
and direction within local authorities and by the authority in representing its area and its
community.
Accountability. 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 etc.
Efficiency. Structures should provide for more efficient and effective decision making processes
leading to speedier, better, decisions taken in a less resource intensive way.
Powerful roles. Structures should provide powerful roles for all councillors, comprising:
* Scrutiny
- ability to question/review executive decisions
- ability to initiate and undertake in-depth reviews of specific areas of the counciľs activity
* Policy
- ability to review and develop policy proposals
- determining policy in council
* Representation
- ability to represent local ward/division concerns through the structure and act as a
`champion' for their area
7
- ability to influence/input to executive decisions affecting their area
- playing a lead role in consultation in their ward/division.
Local ownership. Structures need to be locally owned if they are to work effectively. There is
no one right structure.
Trust. 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 effectively
­ and achieve their objectives ­ if they are
owned locally. Maximum discretion should
be retained locally to tailor models to local
circumstances ­ in 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
governmenťs primary role of providing
leadership and vision in local communities.
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 further:
* clarify decision-making processes
* enhance local accountability
* facilitate strong visible and accountable
leadership and
* 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 governmenťs reputation in terms of
probity and accountability.
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
governmenťs intent to renew civic leadership
and reinvigorate local democracy. The five
areas were probity, best value, community
leadership, democratic renewal and
modernising political structures.
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 governmenťs progress on the reform
and improvement agenda:
* on political leadership, 81% of authorities
have recently reviewed or have in progress,
8
plans to consider an executive/
representational split
* 74% have already taken or have in progress
steps to open up committees to the public
* On probity, 37% of authorities already have
a standards committee in place or in progress
with a further 44% planning this in the
future
* 87% 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% 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 People.
16. It is important that this momentum for
change is not lost. We share the
governmenťs 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 bilľs proposals carry
huge cultural change for local government
and it is important that authorities begin to
address this agenda of change as soon as
possible.
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 governmenťs intentions
would help to enable those authorities who
wish to make progress now, to do so.
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 agenda ­ the 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
9
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) Bill ­ particularly 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 community ­ with 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
partnerships 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 nonexecutive
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 level ­ where
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 bill.
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
10
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.
Political leadership arrangements (chapters 2 and 3 of the
consultation paper and part I of the draft bill)
11
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% 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 the future.
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 example:
12
* the form and broad parameters of the
models
* 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 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. 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.
Consultation
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.
Binding referendums
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. For example:
* 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
13
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 strategies
* 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 ones - this
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% 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 responsibilities - this
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 three members.
* 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 crosscutting
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
14
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 example:
* 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
executive papers
* 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 authorities and
the important contribution such
arrangements can make to the democratic
renewal agenda.
45. A number of local authorities have longstanding
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.
Non-executive members
46. We agree wholeheartedly with the need
to develop powerful roles for all councillors in
the new arrangements - and 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 representatives of their ward/division
* in policy development
* in examining particular areas of council
activity.
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.
15
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 role - especially 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 governmenťs
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
governmenťs 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 be addressed *
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 reexamine
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
16
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 taken.
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.
Conduct of local authority members and employees
(chapter 4 of the consultation paper and part II of the draft bill)
17
59. The LGA reiterates its support for the
thrust of the governmenťs 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 office.
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 transparent manner.
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 position.
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 individuaľs
powers, the greater the necessity to ensure
that probity standards are adhered to - but
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.
18
Standards committees and the
National Standards Board
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 malicious complaints.
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 governmenťs 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
19
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 clarity.
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 arrangements.
20
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.
Conclusions
21
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 factors - including 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 the
proposals.
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.
Annex A
Draft Local Government (Organisation and Standards) Bill
Secretary of State's power to make regulations/issue guidance
22
Part I
cl 2(5) Secretary of State can prescribe the form(s) of the executive by regulations
and determine further models in regulations at a later date. (Local Leadership:
Local Choice indicates that this is likely to specify the broad parameters of the
models, including.....see para 3.6)
cl 2(8) Secretary of State can by regulations amend the number (10) but not (%) size
of the executive.
cl 3(1) Secretary of State can by regulations specify the functions of local authorities
that may not be the subject of executive arrangements and those that may be
(but need not be) the subject of executive arrangements.
cl 3(3) Secretary of State can by regulations specify circumstances in which executive
functions must be discharged by the authority (and not the executive).
cl 7(5) Secretary of State can by regulations make provisions as to the operation and
functions of overview and scrutiny committees.
cl 14(1) Secretary of State may make regulations regarding the nature of citizens'
petitions requesting a referendum. Regulations can specify the form of the
petition, verification, timing of referendums, etc. Regulations may amend the
threshold for petitions.
cl 15(1) Secretary of State may make regulations requiring a local authority to hold a
referendum. Regulations will specify circumstances when Secretary of State
can use this power.
cl 16(1) Secretary of State may issue guidance under Part I, to which local authorities
must have regard. Guidance may cover:
 time within which authorities must draw up proposals to move to
executive arrangements
 time within which proposals must be implemented
 information to be made available to the public about the operation of
executive arrangements
 operation and function of overview and scrutiny committees.
cl 18(1) Secretary of State may by regulations make provisions regarding the timing of
elections for the mayor, within which local authority proposals must comply.
23
cl 21(1) Secretary of State may by regulations make provisions regarding the conduct
of elections for a mayor.
cl 22(1) Secretary of State may make regulations regarding the conduct of
referendums, including:
 the question
 publicity
 conduct of the authority, members, officers and political parties
 permitting a referendum to take place in a manner not involving a poll.
cl 22(3) Secretary of State may by regulations make provisions regarding the
combination of polls at referendums with polls at any election.
cl 23 Secretary of State may make regulations to modify, apply, extend or repeal
any legislation he thinks necessary for the purpose of operating Part I.
Part II
cl 25(1) Secretary of State can by order specify the principles of conduct to apply to all
authorities covered by new ethical framework (to be approved by Parliament).
cl 26 Secretary of State can issue model code of conduct for members.
cl 29 Secretary of State has power to make regulations on the size, composition
and proceedings of Standards Committee.
cl 30 Secretary of State can issue further regulations in respect of functions of
Standards Committee - and allows the Standards Board also to issue guidance
on this matter.
cl 31 Secretary of State has power to make regulations regarding the functions of
the Standards Board.
cl 38 Secretary of State can confer functions to the Adjudication Panel regarding
the conduct of members such as he considers appropriate.
cl 39 Secretary of State can issue guidance in respect of the composition of the
Adjudication Panel.
cl 40 Secretary of State can issue regulations concerning the process of
adjudication.
cl 42 Secretary of State can issue a code of conduct for local authority employees.
24
Part III
cl 44 Details the process for making orders, regulations etc.
cl 45 National Assembly for Wales has most of the Secretary of State's
regulation/guidance making powers in Wales - apart from the power to make
regulations regarding the election for the mayor. (cl21)
cl 46 The Act comes into force 12 months after it is passed - subject to power for
the Secretary of State by order to provide for any provisions to be effective at
an earlier date.