Local Government - May 2009

“I did it my way” – the exercise of ward member powers

One of the most startling provisions of the Local Government and Public Involvement in Health Act 2007 was tucked away at the end. Section 236 allows local authorities to arrange for individual members of the Council to discharge any Council function within their wards, or, as section 236 puts it, “to the extent that the function is exercisable in relation to the electoral division or ward for which the member is elected”. In theory this can be any function at all, and includes well-being powers under section 2 of the Local Government Act 2000 and the exercise of the incidental or facilitative power under section 111 of the Local Government Act 1972. The Secretary of State can make functions unavailable by Order. Any powers delegated can still be exercised elsewhere in the usual way.

If these arrangements relate to non-executive functions they must be made by full Council.

If they relate to executive functions they must be made by the leader or elected mayor. This is an early “strong leader” provision, because full Council cannot control the decision to confer the delegation.

The leader or mayor cannot double-delegate to an executive member powers that have already been delegated under section 14 of the Local Government Act 2000. This last proviso is a bit tricky. Suppose an executive member has individual delegated powers in relation to litter and waste, and ward members generally are given power to determine the location of litter bins in their wards. The executive member already has this power, so must be excluded from the section 236 delegation. He or she will decide where the bins go in accordance with the Executive Procedure Rules and Access to Information Procedure Rules, and not in accordance with whatever rules you put in place for section 236.

There is no requirement here for the delegation by the mayor or leader to be recorded. However, this might be seen as the exercise of an executive function, so that Regulation 4 of the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 SI 2000/3272 applies. This does require a written record to be prepared, as described below.

It is even less clear whether this is a change in governance arrangements for the purposes of the new sections 33A to D of the 2000 Act. This does include any “variation of executive arrangements” (sections 330 AND 33B). “Executive arrangements” are defined by section 10 of the 2000 Act to mean “arrangements by a local authority– (a) for and in connection with the creation and operation of an executive of the authority, and (b) under which certain functions of the authority are the responsibility of the executive.” Variations take two forms: those which introduce a new form of executive and those which do not. The second category must mean something. The 2001 Model Constitution invited authorities to list the parts of their constitution which included executive arrangements, and it was quite a long list and probably included delegation. On the other hand, so far there has been no change to the Local Government Act 2000 (Constitutions) (England) Direction 2000, which prescribes in glorious detail what has to go into a constitution. If changing delegation is a change in governance arrangements, then under section 33E full Council has to draw up proposals for the change, including a timetable, before they are implemented in accordance with that timetable. What a mess! Council legal advisers will have to take a view on whether changes to executive delegations (including the in-year reallocation of executive members’ portfolios) are changes in governance arrangements requiring this two stage process. On the one hand, it is a good way of keeping in touch with decisions of this kind made by a mayor or strong leader, and it is transparent. On the other hand, it is a clunky and inhibiting process, and it could be used to emasculate a strong leader. But we digress.

The idea of single member decisions is quite a new concept. Until the 2000 Act, individual councillors had no power to do anything. Under section 101 of the 1972 Act, local authorities can only delegate powers to committees, sub-committees, joint committees and officers. The case of R v SoS for the Environment ex p Hillingdon [1986] 1 WLR 192 confirmed that a single member could not be a committee, and a host of “Chairman’s (or Chair’s) action” urgency powers had to be changed into “Chairman’s sanction” consultative arrangements. This changed in 2000, not only in relation to the personal powers of the elected mayor or leader, but also because executive arrangements can now permit the delegation of executive functions to individual executive members. This is subject, though, to call-in arrangements for decisions made but not implemented, under section 21 (3), and to the Access to Information rules under SI 2000/3272. Under these rules, key decisions need to be flagged up in the Forward Plan, or brought within the “general exception” or “special urgency” rules. Reports to individual members about key decisions must include a list of background papers, and must be made available to the public for five days before the decision is taken, and sent to the Chairman of the relevant Overview and Scrutiny Committee. Under Regulation 4, the executive member must, as soon as is reasonably practicable create (or get the proper officer to create) a written statement containing a record of the decision, the reasons for it, alternative options considered but rejected, and any conflict of interest declared by any other executive member consulted on the matter, or any Standards Committee dispensation. All this palaver applies to all executive member decisions, not just key decisions. Many local authorities thought that this convoluted process was more trouble than it was worth, and stuck with collective decision-making.

Now, though, ward members can be authorised to do just about anything, within their wards. Some decisions should not be taken by individuals for other reasons, such as the need to follow a fair and Article 6 ECHR compliant procedure, although it would be wrong to get carried away by the difficulties. If a planning officer can determine small-scale planning applications through a paper-based process, for example, there is no reason why this power could not be delegated to a ward member, apart perhaps for the desirability of securing consistency of approach (although some authorities have managed to devolve planning powers to area committees without the sky falling in). It is improbable that they will be authorised to take key decisions. Key decisions either involve a lot of money or affect people in more than one ward. There is no legal obligation, though, to impose a financial ceiling on ward member decisions, and it is conceivable that members in two adjoining wards could each take a decision on a project which straddles ward boundaries and is therefore “key”. So the scope for delegation, legally at least, is considerable.

This raises the spectre of ward members taking decisions not only on all sorts of matters, but also in all sorts of ways – in the bath, on the bus, in the pub, or in conversation with goodness knows whom. And “discharging functions” is not just about taking decisions, it is also about communicating and implementing them. If the world is divided into people who move things around on the surface of the earth and the rest of us, ward members can fall into the first category. If they can be authorised to decide where the litter bins can go, they can also be authorised to put them there. The risk of improper decision-making – procedural failure, lack of understanding of the legal or financial implications, failure to consult, Wednesbury unreasonableness, or bias, for example – is obvious, and the plethora of “duties to have regard” is a real banana skin. These decisions are bound to be controversial, otherwise there would be no point asking a politician to take them. And, if they do start moving things around, they are bound to strain their backs or put them where someone is going to trip.

The 2007 Act recognises that there are governance risks, and added a new section 100 EA to the 1972 Act permitting regulations to be made obliging the member to keep a record of the decision made, or action taken, and to provide the record to the Council. Splendid, we will find the procedural rules in Regulations made under section 236 and section 100 EA? Not on your life. There have been no limiting regulations under section 236, and the Exercise of Functions by Local Councillors (Written Records) Regulations 2009 SI 2009 No 352, which came into force appositely on the 1 April, just say this:

When a member exercises a function under section 236, that member must:

(a) ensure that a record is made in writing of any decision made or action taken in connection with the discharge of that function; and

(b) within one month of the date on which the decision is made, or action taken, provide the record to the authority.”

The record must be kept available to the public for six years. In addition, section 41 of the Local Government (Miscellaneous Provisions) Act 1976 is amended so that the proper officer can certify the record to create admissible evidence of the decision.

If this bare minimum is all there is, you can imagine the fun. Before he goes on holiday, the Leader sends an email to Councillor X giving him delegated powers relating to road safety and small grants to voluntary organisations. Councillor X stops up a road, digs a hole in it, and cancels the grant to the community group he most dislikes. All he has to do is to scribble a note on a bit of paper and drop it off at a Council office four or five weeks later. The first thing the Council will know about it is the arrival of the pre-action letters. If you compare the lack of prescription here with the rigmarole that surrounds every other member decision, you have to conclude either that this is a refreshingly libertarian and trusting approach by the CLG, or that CLG don’t expect section 236 to be taken seriously, haven’t given it any thought or have simply bottled it.

If you are interested in ward member powers, this is a suggested agenda for consideration and discussion with members:

First, it might be prudent to wait to see what the policy initiatives that will replace the abandoned Community Empowerment Bill are going to contain.
Ward member roles are an important part of local democracy, and an equally important counterbalance to the centralisation of authority under the executive system. They have been enhanced by the Call to Action and there may be more to come. It might be a good idea to examine ward member roles in general, and how they fit with community empowerment, community governance changes, asset transfers and any area committee structure, through your constitutional review process.
Participatory budgeting at local level is very much flavour of the month. Will there be a link between funds made available to ward members for section 236 action and a participatory budget process?
What are the constraints in terms of delegating regulatory functions like planning and licensing? What kinds of function would you definitely not want to devolve on policy and risk management grounds?
Identify in outline the functions that are going to be delegated.
Consider each in some detail. What are the legal requirements and what are the risks?
Where is the money going to come from? You will have to identify a budget head and limit ward member spending in some way to ensure it is within budget.
As a general rule, we suggest ward members should take decisions but officers should act on those decisions. If something different is required, a more detailed risk analysis is needed.
At this point you should be able to draft and discuss the way the delegation is to be worded. Generally, we advise that officer delegations should be worded in general terms and in an enabling way. Ward members are not subject to the same professional and managerial constraints, so, regrettably perhaps, the wording is likely to be limiting and detailed. This could provoke debate.
We suggest that ward member powers should be conditional upon the member receiving a prior written report from the relevant officer. This condition could be quite simple, or, depending on the risks and your authority’s general approach, could also require input from legal or financial services officers. It would also be sensible to indicate that, if the member intends or is invited to take other matters or representations into account, he or she should consult officers and ensure that it is appropriate to do so and that they are recorded.
A more cautious approach could require an officer to be present when the decision is taken.
In multi-member wards, we suggest that the reports should also be supplied to the other ward members, and that they should be consulted formally and their views recorded and taken into account before the decision is taken.
For executive matters, we suggest that ward member powers should not extend to key decisions. If they do, the rules about the Forward Plan or the two exceptions come into play, and it would make sense to incorporate a five-day public access to reports rule like the one that applies to executive member decisions.
You will also need to work out whether there is any need or scope for call-in before implementation. If you think that call-in should apply, you will have to dovetail these decisions with your usual process for executive decisions.
We suggest that the ward member should be required to complete a record of the decision in a form approved by the proper officer. It would make sense for it to contain the same information as other decision records: the decision, the reasons for it, alternative options rejected, and any personal or prejudicial interest declared by them or by any other member consulted. At the very least there should be a record of the reason for the decision – your constitution probably requires this.
We suggest that this record should be provided to the proper officer as soon as reasonably practicable, and in any event within one month.
If executive powers are to be delegated you should agree the process, and how the delegation will be recorded, with the leader or elected mayor. Delegation of non-executive functions requires a report to full Council which can also recommend that the constitution be amended.
The Monitoring Officer should give written advice to ward members drawing to their attention the need to record personal interests, avoid taking or becoming involved any decision if they have a prejudicial interest, the duty not improperly to confer an advantage or disadvantage, the duty of confidentiality and the principles of decision-making enshrined in the constitution – and of course offering to help if they are in difficulty. The risk of personal interests is acute – if only 49% of the people in the ward are affected in the same way as the ward member, he or she will have a personal interest and must consider if it is prejudicial.

We hope that this is helpful. There are bound to be other points which we have not thought of, and there may well be guidance or even more regulations. As always, we wish you luck with what lies ahead.

Graeme Creer
Weightmans LLP