UK: Local Government Bill - A Night At The Local Government Opera

Last Updated: 16 January 2007
Article by Nicholas Dobson

Bills, bills! Festivities now a hazy, headachy memory and we're surrounded by the blighters! Gas, electricity, mortgage, credit card, council tax, Local Government and Public Involvement in Health. . .

To help combat any residual boredom which managed to struggle into existence, just before Christmas (on 13 December 2006) the Government introduced this Bill into Parliament (the Bill). And it's certainly not malnourished. Running currently to 176 clauses in 14 parts and with 15 Schedules, this 176 page read is set to occupy the minds of all concerned with local government as it wends its way through Parliament on its pilgrimage towards the mystical realms of Royal Assent.

The Bill does the legals on a range of the October 2006 White Paper proposals. All the fun of the municipal fair in fourteen easy-to-assemble parts. So we have structural and boundary change in Part 1 next door to elections nestling cosily in Part 2. And looking very svelte in a natty little Part 3 we have executive arrangements, closely followed by parishes, hitting the grass roots very finely in Part 4. And take your partners if you please for the co-operation in Part 5 of English authorities with their, er, local partners. Straight from the park, we're truly honoured to have byelaws with us in Part 6. And just arriving together (and causing a bit of a stir amongst the gossip columnists) are best value in Part 7 and inspection and audit in Part 8. But, seriously though folks, ethical standards must be close to all of our municipal consciences at this time of year and we're delighted to see them looking so high-mindedly fetching in Part 9. And with the Valuation Tribunal kicking in at Part 10, patient and public involvement in health and social care in Part 11 and powers of the National Assembly for Wales in Part 12 that just leaves our old friends 'Miscellaneous' (another big hand please) in Part 13 and stepping into the Part 14 spotlight (it has to be said rather engagingly) are the final provisions. So with the introductions over, it's time now to flag up a few highlights from the Bill.

Structural and Boundary Change In England

For those still suffering algebraic withdrawal symptoms after the long disappearance of the CCT 'T' formula (remember that?) there is a little legislative methadone in Part 1. For instance the provisions in clause 2 dealing with proposals for a single tier of local government empower the Secretary of State (SoS) to 'invite or direct' any English county or district (principal authority) to make one of four proposals. These are (per clause 2(1)); a Type A, Type B, Type C or a 'combined proposal'.

I must say, I'd always thought that Type A referred to rather uptight personal characteristics including (e.g. per Wikipedia): 'being impatient, excessively time-conscious, insecure about one's status, highly competitive, hostile and aggressive, and incapable of relaxation' and Type B as being 'patient, relaxed, and easy-going'. However, these in fact (as defined in Clause 2) refer to the different permutations and combinations of possible proposals in relation to achieving single tier in currently two-tier areas. As indicated, the idea is that the SoS may invite or direct any principal authority to make one of the proposals designated alphabetically in Clause 2. So Type A is a proposal for a single tier of local government for the county area in question; Type B is for a single tier for a specified area which is currently one or more districts in the area concerned; Type C is for a single tier for a specified area currently consisting of the county in question or one of more of the districts in that area and one or more relevant adjoining areas and therefore (as the Explanatory Notes indicate) '. . . proposes an area which crosses one or more existing county boundaries'. According to the Explanatory Notes, a combined proposal '. . .is one which is either a combination of both Type B and Type C proposals or which combines two or more Type B proposals or two or more Type C proposals. However, a proposal is not a combined proposal if it includes any Type B and C proposals which are alternatives to each other.' So now you know. But if unclear, you might try taking away the number you first thought of. Or perhaps not.

Subject (amongst other things) to statutory consultation (per Clause 4) the SoS may by order under Clause 7 implement the proposal or an alternative Boundary Committee proposal per Clause 5 (with or without modification). Alternatively, he may decide to do nothing.

Elections in England

Part 2 (as the Explanatory Notes point out) enables district councils holding elections by halves or thirds to hold whole council elections (i.e. electing all councillors at the same time once every four years) where they wish to do so. This part also (amongst other things) provides for a means by which the local authority concerned can take the decision and for the years that that decision can be taken and the change can occur. As the Notes indicate, the decision to move to whole council elections must be taken in a specified period and any such decision must be publicised and notified to the Electoral Commission. Part 2 also removes the requirement for the number of councillors in a metropolitan district ward to be divisible by 3 and allows local authorities to change the names of their electoral areas.

Executive Arrangements for England

Part 3 introduces new executive models and (as the Notes indicate) builds on local authority governance arrangements for England which were first introduced by the Local Government Act 2000. Clause 39 modifies the forms of executive which a local authority can operate under Part II of the 2000 Act. These are currently: directly elected mayor and indirectly elected executive; indirectly elected leader and executive appointed by either the leader or the authority and a directly elected mayor and a council manager appointed to the executive by the authority. The Bill proposes in Clause 39 to modify these arrangements to provide (as the Explanatory Notes indicate) for a:

  • Leader and cabinet executive i.e. a councillor elected as leader for either a 4 year term, in the case of a local authority operating whole council elections, or until his or her term of office as councillor expires, where the local authority instead operates elections by halves or thirds, and two or more councillors of the authority appointed to the executive by the executive leader;
  • Mayor and cabinet executive i.e. a directly elected mayor who appoints two or more councillors to the executive
  • Elected executive i.e. a leader and cabinet who are all directly elected to the council's executive.

As charted in the White Paper it is proposed that 'all executive powers will be vested in the mayor or leader who will have responsibility for deciding how these powers should be discharged - either by him or herself or delegated to members of cabinet individually or collectively'.

Parishes

Individual parishes will be able to resolve to change their style to community, neighbourhood or village while maintaining the existing options for a parish to have the status of a town and change its parish council to a 'town' council (Clause 54). Clause 55 inserts a new section 16A in the Local Government Act 1972 which are currently mere bones apparently to be fleshed out by regulations and guidance. For this enables the SoS to make regulations making provision about the appointment of councillors and in particular regarding the number and nature of persons who may be appointed, their term of office, the rights of persons appointed to participate in decision-making by the council and the purposes for which a person appointed is to be treated as an elected councillor. As the Explanatory Notes indicate, section 16A 'allows for the appointment to a parish council of people who hold a specific position in the local community, such as representatives of key community groups, as unelected members.' And this section 'allows the SoS to issue regulations about appointment and provides a power to issue guidance to parish councils on appointing councillors.'

Clause 56 also aims to enhance a sense of well-being to 'eligible parish councils'. These are parish councils that are prescribed as such by order of the SoS (Clause 56(4)). The White Paper indicated that these would be parish councils that satisfied criteria based on the Quality Parish scheme. Amongst other things, these are councils that are:

  • representative of and actively engage all parts of their communities providing vision, identity and a sense of belonging;

However, parish councils will not have to have regard to community strategies (as do principal councils under section 2(3) of the Local Government Act 2000 when determining how to or whether to exercise the well-being power).

Clauses 58 to 71 deal with 'community governance reviews'. These are reviews of the whole or part of the principal council's area for the purpose of making recommendations in connection with the constitution of a new parish or reviewing existing parishes (including, amongst other things, grouping or de-grouping parishes).

Co-operation of English Authorities with Local Partners

Local Area Agreements

Part V at last introduces a statutory framework for LAAs. Clause 81 defines a 'local area agreement' (LAA) as a document specifying local improvement targets, the persons to whom each target is to relate and the period for which the LAA is to have effect. Clause 78 sets up 'responsible authorities' (i.e. (amongst others) county councils and district councils with county functions for an area and London Boroughs) and Clause 79 establishes partner authorities including 'non-responsible' districts, fire and rescue authorities, police authorities and a range of other public authorities and quangos. Clause 80 then introduces 'local improvement targets' (as the Explanatory Notes indicate) 'to describe any target that has the aim of improving the economic, social or environmental well being of a responsible authority's geographical area.' And each target 'must relate to that authority and/or one or more partner authorities and/or one or more other persons.' The Notes also indicate that the targets are envisaged to include: 'approximately 35 targets relating to the national indicator set for local government (as determined through Public Service Agreements)'. Targets relating to the responsible local authority are those where the exercise by the authority of any of its functions or anything done by it could contribute to the attainment of the target. There are similar provisions in respect of persons other than the responsible local authority and the person in question has consented to the target being specified in the local area agreement.

Clause 81 requires a responsible local authority to submit a draft LAA when the SoS so directs. In preparing the draft LAA the responsible local authority must consult each partner authority (as well as such other persons as seem to it to be appropriate) and also co-operate with each partner authority in determining the local improvement targets relating to the partner authority which are to be specified in the draft LAA. Responsible authorities will also have to have regard to their community strategy (per section 4 of the 2000 Act) and to any guidance issued by the SoS. In addition, in determining the local improvement targets which are to be specified in the draft LAA each partner authority must co-operate with the responsible local authority and have regard to any guidance issued by the SoS.

Draft LAAs have under Clause 82 to be submitted for approval to the SoS who may approve the LAA as it stands or require modification(s). Where an LAA has effect the responsible local authority and each partner authority must in exercising their functions have regard to every local improvement target specified in the LAA which relates to it (Clause 83). Clause 84 enables the SoS to 'designate' a local improvement target. As the Explanatory Notes indicate, the effect of this is 'that the target may not be amended or removed except with the approval of the Secretary of State, following the submission of a revision proposal by the responsible authority'. Other targets may be amended or removed with the consent of each partner authority to which the target relates (except (per Clause 85(3)) during the month after which the LAA has been approved) and subject to consultation with each other person to whom the target relates (Clause 85(4)). Clause 86 contains the process for altering designated targets by means of a revision proposal submitted to the SoS.

There is a duty on responsible local authorities in Clause 88 to publish a memorandum relating to the local agreement giving specified information whenever the SoS designates a local improvement target or revokes a designation or whenever the LAA is modified. The specified information includes the period of the LAA, the local improvement targets specified in it and whether each target is for the time being 'designated'. Section 4 of the 2000 Act is to be amended by Clause 89 also to require responsible local authorities to consult and seek the participation of partner authorities in the development and subsequent modification of the community strategy. Clause 91 contains transitional provisions for the change from voluntary LAAs to those constituted under the Bill.

When the Bill was published LGC reported that 'Local government minister Phil Woolas has insisted the government has made good on its devolution rhetoric by legislating for stronger councils.' Nevertheless the LAA provisions do look very much more like firm central control.

Overview and Scrutiny Committees

The White Paper charted the proposed 'Community Call for Action' which was to be introduced to 'strengthen the ability of local councillors to speak up for their communities and demand an answer when things go wrong.' The Overview and Scrutiny Committee (OSC) was to act 'as a gatekeeper to ensure that the issues it deals with are of genuine interest to the community'. These provisions have now found their way into the prospective legislation. The Local Government Act 2000 is consequently to take on some new passengers.

Clause 92 of the Bill inserts a new section 21A into the 2000 Act which (amongst other things) will require that local authority executive arrangements enable any member to refer to the OSC (or its sub-committee) any matter relating to the discharge of any authority function which affects all or part of the electoral area for which the member in question is elected or which affects any person who lives or works in that area. Exceptions (excluded matters) will include crime and disorder matters and any other matters specified in an order by the SoS. Referring a matter will mean enabling the person to ensure that the matter in question is included in the agenda for and discussed at a meeting of the relevant committee or sub-committee.

In respect of referrals from members not on the OSC (see inserted section 21A(5) - (8)), whilst the OSC may decide not to exercise any of its powers in relation to the matter (under section 21(2) of the 2000 Act), if it does so decide it must notify the member in question of its decision and the reason for it. And the OSC must copy to the member any report or recommendations on the matter which it makes to the authority or executive under section 21(2).

There will be ways of making you provide information. These powers will be available to OSCs to the extent of any regulations made by the SoS under a proposed new section 22A of the 2000 Act (inserted by Clause 94). For that measure enables the SoS by regulations to make provision as to the information which relevant partner authorities must provide (and also which information may not be disclosed) to the relevant committee.

There are new duties on OSCs (amongst other things) to require the authority or executive to respond to an OSC report, to indicate the action (if any) the authority or executive proposes to take and in the case of published OSC reports, to publish the response (Clause 95). Partner authorities will also in exercising their functions be obliged to have regard to a relevant OSC report or recommendations in respect of a local improvement target relating to a relevant partner authority and which is specified in a LAA.

Byelaws

As indicated in the White Paper the Government intends to use the powers in Part 6 to enable regulations establishing a new procedure for local authorities to follow in making byelaws. As the Explanatory Notes indicate, the '. . .intention is that this power will be used so that once local authorities have consulted on, prepared and advertised draft byelaws locally, they can be enacted without confirmation by the Secretary of State.' The Notes indicate that the clauses '. . .also provide for the enforcement of byelaws through fixed penalty notices, as an alternative to enforcement through Magistrates Courts.' This is indicated to 'bring the enforcement of byelaws on to the same footing as the enforcement of other low-level nuisance activities, and . . .[to]. . . facilitate a more coordinated approach to the enforcement of such matters.'

However, Clause 99 will require authorities to 'have regard to the desirability of using its fixed penalty receipts for the purpose of combating any relevant nuisance' - an encouragement towards hypothecated penalties. And lest authorities falter in the absence of a guiding hand, Clause 100 races to the rescue to enable the SoS to issue guidance on byelaw procedure, fixed penalties and related issues.

Best Value

Unfortunately not what hardy shoppers were seeking to achieve in the post-Christmas sales, but of course the statutory duty in Part I of the Local Government Act 1999. As the Explanatory Notes indicate, Part 7: '. . .removes certain aspects of the best value regime, in particular the requirement on best value authorities to carry out best value reviews.' It also '. . .places a new duty on English best value authorities to actively involve representatives of local people in the provision of local services' (no doubt whilst also actively splitting infinitives) and 'provides the Secretary of State and Welsh Ministers with a new power to issue guidance to best value authorities on the general duty of best value'. Not only that, but Part 7 also '. . .provides Ministers of the Crown and Welsh Ministers with power to issue grants to promote or facilitate the economic, efficient and effective provision of services by best value authorities.' Parish and community councils will no doubt be very pleased with Clause 104 which (at one wave of its legislative wand) proposes to remove them from the Best Value regime. And again, lest authorities feel under-guided, the powers of the Secretary of State to issue guidance on best value are to be extended, courtesy of Clause 105.

As to stakeholder engagement, whilst currently section 3(2) of the 1999 Act requires authorities to consult specified stakeholders for the purpose of deciding how to fulfil the Best Value duty, Clause 106 now goes further, inserting a new section 3A to encourage involvement of local persons (those likely to be affected by or interested in the exercise of the function) through provision of information, consultation or other involvement.

Performance Indicators are to be felled by Clause 107 for English authorities and police authorities in Wales and Best Value Reviews are also to be axed by the surgical removal of section 5 of the 1999 Act (through Clause 108).

Inspection and Audit

The provisions include (at Clause 119 which inserts provisions into section 6 of the Audit Commission Act 1998) extension of the powers of auditors and inspectors to obtain information. These extensions include the power to inspect, copy or take away documents, to require hard-copy printouts, and access to computers. The Audit Commission will be empowered (by Clause 124 which inserts a new section 47A into the 1998 Act) to produce comparative and other reports on local authority performance including on risk of failing or inadequate performance, the rate of performance improvement and the economy, efficiency and effectiveness of authorities' use of resources. Clause 125 amends the requirement in section 99 of the Local Government Act 2003 for the Commission to produce reports categorising local authority performance by providing that these are to be needed only if the SoS directs.

The current law on elector objections in section 16 of the 1998 Act provides for the objector to 'attend before the auditor' to make objections. Clause 126 amends section 16 to remove this provision and requires all objections to be in writing.

Ethical Standards

The Explanatory Notes indicate that Part 9 gives effect to the Government's proposals charted in December 2005 for the 'reform' of the conduct standards regime. According to the Notes, the proposals:

'. . .are aimed at devolving most decision-making on the conduct regime for local authority members to local authorities, with a revised, regulatory role provided for the Standards Board. The measures provide for local standards committees to make initial assessments of misconduct allegations and for review arrangements for those assessments which lead to no action being taken. The provisions also give powers for the Standards Board to suspend a standards committee's role in making initial assessments of allegations, and for the Board to issue guidance to standards committees and ethical standards officers.'

And, in addition:

'. . .provision is made for decisions in respect of local authority posts subject to political restrictions to be undertaken by standards committees rather than, as now, by the Independent Adjudicator, and to enable the Secretary of State to issue an order to allow the maximum pay of political assistants to be linked to a point on a relevant pay scale specified by the order.'

Clause 131 addresses the issues raised in Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin) regarding conduct performed outside a member's 'official capacity'. Insertions into section 49 of the 2000 Act will make clear that provisions (in respect of specified principles of conduct and the Model Code of Conduct and its adoption) will not be limited to provisions applying to a member 'only in his official capacity'.

Clause 132 will substitute the authority's Standards Committee for the Standards Board in respect of receiving and assessing written allegations of failure to comply with the Code. However, where a Standards Committee decides to take no action, a new section 57B of the 2000 Act (inserted by Clause 132) enables the person who made the allegation (within 30 days of receiving statutory notification of that decision) to ask the Standards Committee to review its decision. After receiving such a request the Standards Committee must undertake another assessment of the allegation. The Standards Board will also be able (under a new section 57C of the 2000 Act and 'in such circumstances as may be prescribed') to suspend the powers of a Standards Committee to undertake initial assessments of misconduct allegations and to direct such allegations to the Board or to another authority's Standards Committee.

And (as indicated) no longer will the granting and supervision of exemptions from political restriction (under Part I of the Local Government and Housing Act 1989) be the responsibility of the Independent Adjudicator appointed by the SoS. Under Clause 149, this will become the responsibility of the Standards Committee for each English authority.

Patient and Public Involvement in Health and Social Care

Clause 153 will require each local authority to make 'contractual arrangements' with a local involvement network (not being a local authority or health body) to ensure means for:

  • promoting and supporting the involvement of people in the commissioning, provision and scrutiny of local care services (i.e. health and social services functions for the area in question)
  • obtaining people's views about their needs for and their experiences of local care services
  • making such views known and producing reports and recommendations about how local care services might be improved to persons responsible for their commissioning, provision, management or scrutiny.

The SoS will be able under Clause 155 to make regulations imposing duties on service providers (amongst other things) to respond to requests for information made by a local involvement network (LIN) and dealing with reports or recommendations made to the service provider by the LIN. Clause 156 will enable provision by regulation to require service providers to allow authorised LIN representatives to 'enter and view, and observe the carrying-on of activities on, premises owned or controlled by the services-provider'. Where a LIN refers a social care issue to an OSC the OSC must (amongst other things) acknowledge receipt of the referral and keep the referrer informed of the OSC's actions in relation to the matter (Clause 157). Each LIN will have to prepare an annual report addressing (amongst other things) matters directed by the SoS and details of the amounts spent in respect of the LIN and what those amounts were spent on (Clause 158).

Other provisions

Part 12 will make amendments to the Government of Wales Act 2006 to confer (as the Explanatory Notes put it) 'enhanced legislative competence on the Assembly in specific fields'.

Until executive arrangements under Part II of the 2000 Act, individual members were unable to take decisions on behalf of their authority. Part II enabled executive members (as well as officers) to take decisions but this still left out 'backbench members'. Clause 166 addresses this by enabling an authority to arrange for an individual member to exercise functions in relation to the electoral division or ward of the member in question. Where the function is the responsibility of the executive, it is for the senior executive member to make the arrangements and in other cases it is for the authority to do so. The SoS may by order exclude functions from such arrangements. Clause 167 makes provision for recording and public inspection of functions exercised under Clause 166.

Conclusion

The Bill clearly heralds a busy time for authorities. Those in two tier areas will have to get ready for any single tier invitations or directions. Senior executive leaders will be limbering up as will parishes and prospective parishes. And whilst the LAA regime will at last be on a statutory basis, there will equally be a range of new duties to meet. Backbench members newly empowered with the Community Call for Action and new decision-making powers will no doubt be creating a buzz and there will also doubtless be much more work for Standards Committees and monitoring officers following devolution of responsibilities from the Standards Board to local Standards Committees. But for all the heady talk of devolution from central to local government, there is also an abundance of provisions for statutory orders and guidance thereby ensuring that the Government does not relinquish control. And of course, the full suite of public law requirements (e.g. fairness) underpin the new duties e.g. consultation and involvement. So, as authorities return with batteries recharged, fighting fit and ready to face the music of a New Year, they will be likely to encounter quite a large orchestra tuning up for what looks set to be a fairly hefty night at the local government opera.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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