Local Government - February 2009
Communities in Control Consultation Papers
As strap lines go, “Communities in Control: real people, real
power” is a cracker. It fizzes with pragmatism and
purpose. CLG plainly think so, and they have slapped it on to
a series of consultation papers, many of which have nothing to do
with communities or (if you exclude councillors, local government
officers and commentators like us) real people. Let us have a
quick look at them all.
The first one was subtitled “Improving
Local Accountability”. It was issued last August,
consultation closed in October and CLG have just issued a
response.
- The Local Government and Public Involvement in Health Act was
plainly a half way house in terms of the plans to boost the
scrutiny function. The 2007 Act focussed on LAA
targets. The consultation paper asked about the information
that top tier “responsible authorities” should be able to seek from
LAA partners and districts from counties and others. It
proposed applying the usual rules excluding public access to exempt
and confidential information to “call to action” exchanges between
scrutiny committees and the executive or the Council, and that
joint county/district scrutiny committees should be able do more or
less the same things as single-authority committees. It
suggested that district scrutiny committees should be able to
require information from other partner agencies about LAA targets,
but bore down on any suggestion of duplication, to prevent stroppy
districts asking questions that counties had already asked.
All this is rather dull housekeeping which will not matter unless a
LAA partnership falls apart. Expect regulations and guidance
quite soon.
- The Local Democracy, Economic Development and
Construction Bill moves the process on, extending joint
working outside the LAA arena, obliging top tier authorities to
appoint a dedicated “scrutiny officer” and giving scrutiny
committees primary, but not sole, responsibility for responding to
petitions under the proposed “petition scheme”.
- The next suggestion was to oblige senior officers (and members)
to attend regular “torches and pitchforks” meetings where local
residents would be able to heave bricks and lob rotten fruit at
them, either on a regular basis or when a required by a
petition. This has reappeared in the Bill as one of the
features of the petition scheme, with an indication that the
meetings in question will be scrutiny committee meetings, and that
nothing further is planned.
- The last idea was remote attendance and voting at
meetings. This met with a certain amount of derision. Less
than a quarter of the consultation responses supported it.
The listening and ever responsive Government is therefore going to
press on with it, and something should appear in the newly
announced Community Empowerment Bill.
“The making and enforcement of
byelaws” also appeared in August, closing in
November. It listed the bylaw making powers which are to be
deregulated under the 2007 Act, and suggested a consultation
procedure before bylaws could be made, although it pointed out that
London Boroughs have existing powers under the London Local
Authorities Act 2004, so should not be allowed to play. It
suggested enforcement as fixed penalty offences by authorised
officers and that Regulations will fix a range of FPN tariffs based
on a default rate of £75.
“Standing for Office: Time-Off
Entitlements - A consultation” was published in
September and closed in December. It is only of
indirect interest to local authorities because councillors, like
JPs and members of certain tribunals, have time-off rights under
Section 50 of the Employment Rights Act 1996. It talked about
extending this to members of probation boards and probation trusts,
court boards, and youth offender panels, lay advisers assisting
Multi-Agency Public Protection Arrangements and co-opted overview
and scrutiny committee members. It asked whether board
members of RSLs, TMOs and ALMO should have time-off rights and
discussed other ways to encourage participation in governance in
third-sector organisations.
“Codes of conduct for local authority
members and employees” was published in October.
Consultation closed on Christmas Eve (Bah! Humbug!). There
are three elements:
- It revisited the endless debate about whether bits of the
members’ Code of Conduct should apply outside their official
capacity. The suggestion is that the provisions of the 2007 Act
that, in effect, repeal the Livingstone decision
should be implemented on the basis that only conduct outside
official capacity which has resulted in a serious criminal
conviction should be caught. To weed out the less serious and
“civil” offences, convictions for offences where there is a fixed
penalty option should be excluded, as would cautions and other
court orders (“my client Councillor X is prepared to accept an
ASBO, your Honour”). Foreign convictions would not count if
there is no equivalent offence in this country. A Standards
Committee would have to wait, possibly an awfully long time, for
the criminal justice process to run its course. The phrase
“official capacity” would be redefined more or less in line with
Livingstone. A new General Principle would
be created, applying outside official capacity: the duty to
abide by the law.
- Some tinkering with the Code is suggested:
Parish Council members would be given an
automatic right to speak, like other members of the
public, on matters in which they have a prejudicial interest.
At the moment, this provision has to be adopted, which, in our
view, the legislation does not actually allow.
It will be made clear that you do not have to
register your membership of the authority that keeps the
register.
The clumsy wording of the gifts and
hospitality registrable interest will be cleaned up.
The even clumsier wording of the prejudicial
interest test, which is another piece of drafting that doesn’t do
what everyone thinks it does, will also be tidied up.
- A mandatory Code of Conduct for Officers has been on
CLG’s to-do list since 2001. The consultation paper suggests
a half-baked list of do’s and don’ts, based loosely on the members’
code but with some lumpy drafting and a few add-ons, and with some
extras, including a register of interests and the concept of
“prejudicial interests”, for senior officers. The option of
extending this to parish council officers is canvassed. This
code would automatically be incorporated in terms and conditions of
employment, giving rise to tricky questions of enforcement through
disciplinary proceedings, if indeed it is enforced at all. We
rather hope this will go away again.
In December, “Changing Council
Governance Arrangements: Mayors and Indirectly Elected
Leaders” was published. Consultation closes on
Friday the 13 March. This is mostly an attempt to boost the
chances of elected mayors being forced on reluctant authorities who
are quite happy with their leader and cabinet system. The
proposals are likely to appear in the Community Empowerment Bill.
The actual suggestions are:
- Councils consulting on changing from elected mayor to leader
and cabinet will not have to list the pros and cons or explain
their reasons.
- After a referendum for an elected mayor, there is a moratorium
period before another one can be held. The 2007 Act increased
this from five to ten years. It is now suggested that it
should be reduced to four years if the outcome of the referendum
was “no change”.
- It is suggested that the threshold for the number of signatures
on a petition, currently 5% of the electorate, should be reduced,
and electronic petitioning introduced.
Also published in December, with a less
unlucky closing date of the 12 March, “Code of recommended
practice on local authority publicity - A consultation”
asks a stream of open-ended questions about how the Statutory Code
of Guidance on Local Authority Publicity could be amended to make
it less prescriptive. As the only useful thing that the
guidance could do – advise authoritatively on the application of
section 2 of the LGA 1986 and the prohibition on party political
publicity especially in the run up to elections – seems to have
been ruled out, we think that the Code is a waste of time in any
event. There was earlier consultation on dropping the whole
idea, but sadly that option seems to have been ruled out too.
So there we are: complicated rules on scrutiny
but at least there will be one person who understands it all;
petitions to validate and categorise; time off work for parent
governor co-opted scrutiny members; officers in the stocks;
meetings on the mobile; a £75 misbehaviour ticket from the parish
clerk; more training for Standards Committee members, and some
rules for officers that no one will enforce; a slightly greater
chance of an unexpected Boris, and even vaguer publicity
guidance.
Oh brave new world, that has such real people
in’t.
Graeme Creer
Weightmans
LLP