Memorandum by the Association of Council
Secretaries and Solicitors (ACSeS) (LAG 22)
1. The Association represents senior lawyers
and administrators in local authorities throughout the United
Kingdom. The Association has welcomed the opportunity to discuss
with officials from the Department of the Environment, Transport
and the Regions, the relevant primary and secondary legislation
and statutory guidance in draft form; the Association welcomes
the opportunity to submit its views to the Environment Sub-committee
on the final outcome, and on the experience of its members to
2. The Association's views are set out below
under the headings in the Committee's Press Notice of 30 November
3. General. As a general point the
Association regrets the degree of prescription under Part 2 of
the Act. Whilst admiring the industry of colleagues in the civil
service who have produced the guidance, regulations and directions,
the volume of material to be issued in two substantial ring folders
to each local authority represents an unprecedented degree of
detailed design by central government.
4. Will the changes contribute to greater
efficiency, transparency and accountability in local government?
4.1 The introduction into the second draft
of the statutory guidance and the relevant draft regulations of
a "forward plan" considerably changed the emphasis from
a quick decision-making process, to a potentially elaborate mechanism
for compiling and publicising likely "key decisions"
four months in advance. These proposals
are considerably more elaborate than
provisions in the Local Government Act 1972 and the Local Government
(Access to Information) Act 1985;
will be difficult to achieve so far
will require authorities to publish
in advance of decisions, a list of the documents already submitted
to the decision maker at the date of publication of the forward
plan, in respect of the decision to be made;
will arguably make the management
of political business extremely difficult, in practice.
4.2 The Association welcomes the flexibility
given to authorities to interpret "key decisions" particularly
as a result of the inclusion of such words as "material",
and "significant". In practice however there is considerable
doubt that this flexibility will compensate for the administrative
and political difficulties referred to in the previous paragraph.
4.3 The Association notes that most of the
plans or strategies in the proposed Policy Framework do not require
full council approval under existing legislation, and may be delegated
to a committee under Section 101 of the Local Government Act 1972.
4.4 That being so, the requirement in the
Guidance and Regulations that the proposed plans and strategies
be submitted to full council, represents the introduction of an
unnecessary administrative burden. A greater number of full council
meetings than would otherwise have been the case, will undoubtedly
4.5 The concept that this will enhance the
role of the full council, is misconceived. It will give councils
more to do, but many of the plans and strategies in the proposed
list are plans to achieve policy objectives, and are not themselves
truly part of the council's corporate policies. In particular
the following plans are purely implementation strategies rather
than true policy documents:
Children's Service Plan.
Crime and Disorder Reduction Strategy.
Early Years Development Plan.
4.6 The Association believes that a list
of policies and strategies should be specified in the Guidance
but on the basis that local authorities should be able to choose
whether or not to require final approval by full council in respect
of most of them.
4.7 Disputes Mechanism: It is disappointing
to see the continued inclusion of a power of overview and scrutiny
committees to refer matters direct to the full council. Reports
direct to council will undermine the accountability of the executive
and will confine the public as to who is responsible for the final
decision. It should be sufficient for public accountability to
require the executive to reconsider, and publish its final view.
5. Impact of the new arrangements on the role
of councillor, officers and on the local electorate
5.1 The introduction of an executive will:
lead to full-time local politicians.
produce tensions between individual
members of the executive and chief officers, where their portfolios
test the ability of senior officers
to maintain support, and the appearance of support, to all parts
of the council;
place a significantly increased burden
on the monitoring officer in ensuring that the decision making
processes and arrangements for access to information are properly
5.2 It remains to be seen whether these
internal arrangements have any significant impact on local electorates.
The general view within the Association is that without considerably
more flexible voting arrangements, the turnout at local elections
is unlikely to be improved by the introduction of new political
6. Experience of overview and scrutiny committees,
area committees and other devolved arrangements.
6.1 The Association welcomes the reference
to officer decisions normally being scrutinised "only as
part of a review of service plans or during the Best Value process".
6.2 The Association also welcomes changes
to the Guidance to the effect that decisions of non-executive
committees will not normally be the subject of scrutiny.
6.3 The Association continues to be concerned,
however, about the right of any member of a committee to ensure
that an item is placed on the agenda of an overview and scrutiny
committee under Section 21(8) of the Act. This right is open to
abuse, particularly where a council is hung or there is only a
small majority. It may be used to circumvent a decision of a committee
not to call-in an executive decision.
6.4 Call-in generally is open to abuse.
Councils are asked "to ensure that [such] a "call in"
procedure is not abused" but abuse is a real possibility,
particularly in authorities with no overall control or a small
6.5 The Association welcomes the flexibility
now given to appoint non-executive members to joint area committees,
particularly given the likely involvement of area committees in
community planning functions.
7. Adequacy of the statutory guidance
7.1 The courts have said that "while
guidance and directions are semantically and legally different
things", in practice statutory guidance was not to be put
on a par with the many forms of non-statutory guidance issued
by departments of state. (R v London Borough of Islington, ex
parte Rixon, 1997). It may be, therefore, that the courts would
interpret Section 38 of the Act and the duty of authorities to
"have regard" to the Secretary of State's guidance,
as creating a presumption that it should be followed.
7.2 If that were to be the case, the different
shades of advice within the guidance (something "should"
be done a certain way, the Secretary of State "advises",
and so on) will be difficult in practice to assess and to attach
Chairman of Democratic Services Committee, ACSeS