Select Committee on Environment, Transport and Regional Affairs Memoranda

Memorandum by the Department of the Environment, Transport and the Regions (LAG 33)



  1.  The Local Government Act 2000 Act (the Act) received Royal Assent on 28 July 2000. Part II of the Act makes provision for new constitutions for London borough councils and county councils and district councils in England and Wales (including metropolitan and unitary authorities). It requires each such council to consult on, draw up proposals for and adopt a new constitution.

  2.  Under the Act there are currently three forms of executive arrangements for most councils (a directly elected mayor with a cabinet of councillors, a leader appointed by the council with a cabinet of councillors or a directly elected mayor with a council manager). Section 11(5) of the Act enables the Secretary of State to add further forms of executive by regulations. An additional option of a streamlined committee system with integral overview and scrutiny arrangements (alternative arrangements) is available to small shire district councils (ie district councils in the area of a county council with a population of less than 85,000 as estimated by the Registrar General on 30 June 1999).


  3.  Section 108(4) of the Act provides that the provisions in Part II come into force 12 months after Royal Assent unless they are brought into force by Order of the Secretary of State (in England) or in Wales by the National Assembly for Wales. In addition, a large number of statutory instruments with associated directions and guidance are necessary to give full effect to the provisions in Part II. Implementation of Part II of the Act in Wales is, with the exception of regulations governing the conduct of mayoral elections, a matter for the National Assembly for Wales.

  4.  In England, the Government's approach to implementation of Part II of the Act is to adopt a phased approach to the commencement of the primary legislation and publication of secondary legislation, directions and guidance. Each stage enables councils to progress to the next stage of implementation of a new constitution (ie consultation, drawing up proposals, holding referendums where necessary, holding mayoral elections where necessary and operating the new constitution). The approach also seeks to integrate the implementation of Parts II and III (the ethical framework) of the Act, enabling councils to design in ethical considerations to their new constitutions.

  5.  Throughout this process of implementation the Government attaches great importance to following an inclusive approach, working collaboratively with local government, the Local Government Association (LGA), the Society of Local Authority Chief Executives (SOLACE) and other representative organisations and stakeholders. This approach is built on the inclusive approach the Government followed before and during the preparation and passage of the Local Government Bill, which became the Act including the development of proposed secondary legislation and statutory guidance.

  6.  Before consideration of the Local Government Bill began, the Government issued a series of consultation papers leading up to publication of the White Paper Modernising Local Government : In Touch with the People[18]. The White Paper was followed by the paper Local leadership, local choice[19] which included the draft Local Government (Organisation and Standards) Bill which subsequently became the Local Government Bill. The draft Bill underwent a process of pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords to which the Government subsequently responded[20].

  7.  In January and May 2000 the Government published consultative drafts of proposed guidance and regulations to assist Parliamentary consideration of the then Local Government Bill and to give an early opportunity to all interested parties to participate in the development of the detailed arrangements for councils' new constitutions. These drafts were published following extensive working level discussion with, amongst others, representatives of the LGA and SOLACE. 177 and 122 responses were received to these consultations respectively. In addition, 30 responses were received to a consultation paper published in May 2000 on the conduct of referendums and mayoral elections. Copies of all these responses can be found through the Library of the House of Commons.

  8.  In Local leadership, local choice the Government encouraged councils to open a dialogue with local people and other stakeholders about how they want to be governed locally and to reassess their current working methods and how local people can be involved in decisions about local governance. This has led a number of councils, within the confines of existing legislation, to experiment with new structures including overview and scrutiny arrangements and more executive-style decision making.

  9.  Valuable lessons have been learned from this experience. However, as the Minister of State for Local Government and the Regions told the House of Commons on Tuesday 23 January 2001, "I accept that in the past year . . . some councils have become far too secretive while purporting to be moving towards new constitutions. Such councils have not done a good job of making the case for local democracy. However, let there be no doubt that the Government deplore such behaviour . . .". The Government is clear that the new statutory framework will specifically prevent the kind of behaviour to which the Minister was referring.

  10.  The lessons learned from these experiments and the outcomes of the consultation processes outlined, together with the experience of the DETR Local Government Modernisation Team (a team drawn from senior local government practitioners to assist councils implement the local government modernisation agenda) and the Department's other work with local government practitioners, have greatly assisted the Department in preparing the detailed secondary legislation and guidance necessary to implement Part II of the Act.


  11.  The Government has adopted a Public Service Agreement target to "ensure that by December 2002 each council has adopted and put into operation a new constitution which is transparent, accountable and efficient". Within this, as set out in the guidance issued to councils on 26 October 2000, the Government has set the following milestones:

    —  all councils (in normal circumstances) to have sent proposals to the Secretary of State by the end of June 2001; and

    —  all councils (in normal circumstances) to have adopted their new constitution by the end of June 2002.

  12.  To date the following there have been implementation phases:

    —  7 August 2000—commencement of the enabling powers in Part II of the Act;

    —  26 October 2000—commencement of the remaining provisions in Part II (with the exception of those relating to referendums and mayoral elections) together with publication of certain statutory instruments and directions, guidance and non-statutory guidelines (published jointly with the LGA) about consulting on new constitutions. This phase provided sufficient powers, legislation and guidance for council's formally to begin the process of consulting their communities about proposals for a new constitution; and

    —  19 December 2000—publication of regulations and updated guidance on access to information under executive arrangements together with example constitutions (in modular form and published jointly with the LGA and the Improvement and Development Agency—IDeA) to assist councils in drawing up their proposals.

  13.  Future phases will include:

    —  publication of further secondary legislation (including modifications to previous legislation) and guidance necessary for councils to operate executive arrangements;

    —  publication of secondary legislation and guidance necessary for councils to operate alternative arrangements; and

    —  commencement of remaining primary legislation and publication of secondary legislation and guidance necessary for the conduct of referendums and mayoral elections.

  14.  Within this context the Department envisages that, subject to Parliament, the necessary secondary legislation and guidance will be in place as follows:

    —  to enable the first referendums on proposals which include a directly elected mayor to take place in May 2001;

    —  for councils to be able to begin to operate leader and cabinet arrangements and alternative arrangements from May/June 2001; and

    —  to enable the first elections for directly elected mayors and councils to be able to begin to operate mayor and cabinet and mayor and council manager arrangements in October 2001.

  15.  In addition to publishing secondary legislation, directions and guidance, the Government and other organisations are supporting implementation of new constitutions in numerous ways including:

    —  the Department and the LGA have jointly published guidelines to assist councils in consulting their communities about proposals for a new constitution;

    —  the Department, LGA and IDeA have jointly published examples of new constitutions, in modular form, to assist councils in drawing up their proposals and in operationalising the legislation;

    —  the Department, principally through its Local Government Modernisation Team, is providing a range of events, support and training for councils, councillors and officers in conjunction with organisations such as the regional employers; and

    —  the LGA, IDeA and organisations such as the regional employers are independently providing support and training for councils, councillors and officers.


  16.  From 26 October 2000 it has been open to councils formally to begin the process of consulting local communities about proposals for a new constitution and of drawing up those proposals. A number of councils, who have conducted some previous consultation on this issue could now be well down the track towards finalising their proposals. The focus of implementation is to give local people choices and to encourage diversity. As such the Government believes that it is essential that councils' consult openly and inclusively with local people about new constitutions.

  17.  At this stage the Department expects, as a minimum, councils to be actively engaging local people and other stakeholders in a comprehensive, inclusive, fair and balanced debate about how their area is to be governed in the future. The guidelines issued jointly by the Department and the LGA provide detailed advice for councils about how to go about doing this. In particular those guidelines stress that: "it is vital for the public to believe that the authority has not already made up its mind, so that people could feel they will make a difference to the decision"; "where opinion is evenly split there is a case for pushing ahead with a commitment to a binding referendum on the issue"; and "the basic options will need to be described in a way that makes it as easy as possible for the public to understand".

  18.  The first formal information on progress made by councils will be available as councils send their proposals to the Secretary of State (prior to implementation) and when councils notify the Secretary of State of receipt of a petition requesting a referendum on proposals for a directly elected mayor.

  19.  To date one council, the Borough of Berwick-upon-Tweed, has notified the Secretary of State of receipt of a valid petition. The Department understands from discussions with officers in Berwick that the council is well down the track towards preparing proposals and holding a referendum for a directly elected mayor. No further submissions or notifications have been received. The Department expects further definitive information on progress to be available as councils send in their proposals over the coming months leading up to the milestone date for submission of June 2001.

  20.  Early indications from the Department's work with local government suggests that there are petitions in circulation in a number of councils' areas and that a number of councils are actively considering arrangements which include a directly elected mayor. The Government has previously made clear where local people think that a directly elected mayor is right for their town or city it wants such a mayor to be elected.

  21.  More generally, these early indications also suggest that councils are making reasonable progress on consultation and preparation of proposals. The Secretary of State has reserve powers to set a deadline by which all councils must have sent in proposals and to require a local authority to hold a referendum on a specified form of executive arrangements where that authority has not complied with the legislation or in cases of abuse or inertia as set out in Schedule 2 to the Local Authorities (Referendums) (Petitions and Directions) (England) Regulations 2000. It is the Government's hope that no circumstances will arise where it becomes necessary to use these powers. Until formal submissions and notifications are received the overall picture, which is in any case currently changing daily, will not become clear.


  22.  The process of implementing Part II of the Act will continue to be developed even after all councils have adopted a new constitution. As outlined in the introduction to this memorandum, the Act includes a power for the Secretary of State to make available further forms of executive not provided for on the face of the Act. The Government has consistently made clear that the Secretary of State would be prepared to use this power if, in the light of councils' experience of operating executive arrangements, further forms of executive emerge which are likely to deliver the underlying aims of enhanced efficiency, transparency and accountability.

  23.  In addition, the Act also provides for alternative arrangements to be made available to councils other than small shire districts. This power was included primarily to enable the National Assembly for Wales to decide the policy on availability of alternative arrangements to councils in Wales. The Government believes that it is too early to consider using this power in England. Parliament has already taken a view on the appropriate description of council to which alternative arrangements should be available and the Government believes that it would not be appropriate to add further descriptions of English council before having the benefit of councils' experience of operating a new constitution.


  24.  The Government has consistently stated its belief that the executive arrangements, now given effect in the Act, will bring about more efficient, transparent and accountable local government. The debate on this issue has been going on within and outside government for many years. The Government's policy takes account of that debate and of evidence from overseas experience of similar governance arrangements as well as domestic and overseas research. Further details of this evidence base can be found in Modernising Local Government : In Touch with the People and Local leadership, local choice.

  25.  The Government's view is that over time the substantial benefits from executive arrangements will strengthen councils' capacity both as leaders of their communities and to achieve, through the best value process, the delivery of quality local services. The Government considers it is important, in accordance with the principles of modernising Government, that policy making should be based on evidence and followed up with rigorous evaluation. Accordingly, the Department intends to commission a rigorous and systematic evaluation project to assess the impact of new constitutions in England. This evaluation project is expected to get underway in early 2002 and the first results are expected to be available later that year with the final results published by 2005.

February 2001

18   Modern Local Government: In Touch with the People, Cm 1014, TSO 1998, ISBN 0 10 140142 6. Back

19   Local leadership, local choice, Cm 4298, TSO 1999, ISBN 0 10 142 982. Back

20   Government Response to the Report of the Joint Committee on the Draft Local Government (Organisation and Standards) Bill, Cm 4529. Back

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