Select Committee on Transport, Local Government and the Regions Memoranda

Memorandum by Solace (LGA 14)


  1.1  The sub-committee requested submissions setting out how the new arrangements introduced as a result of the Act are working. Solace has canvassed its members and submits the following response to the sub-committee for consideration. We have structured our reply in the same order as the Act itself, taking each aspect separately.

  1.2  All the comments made should be read in the light of the fact that local government is not homogeneous. It is felt that this may be increasingly over-looked by central government, evidenced by the fact that District Councils are regularly sent correspondence destined for social services authorities, and frequent mention is made of unitary government with no reference to two tier authorities. Small councils submitted evidence as to not taking up the "fourth option" in the Act because preparations for cabinet government were in hand and they did not wish to brand themselves as small. Another noted "as a small rural district the principle difficulty we have is that the legislation was not drawn up with our circumstances in mind".

  1.3  In this debate and in the discussions about the White Paper many District Councils noted the fact that they are responding to all the same requirements as larger unitary authorities but with far smaller resources, particularly in respect of employee numbers and range of posts not already deployed in service delivery. Responding to the Best Value and other monitoring agendas has in some cases necessitated expenditure on posts which has been found from previously service-directed budgets. One Council notes, "The expectations of all local authorities now causes significant strains for small organisations like ours with a lack of corporate resources. We consistently see the problem of trying to translate Government policies and expectations into our circumstances when they were drawn up, often for urban unitary settings with executive decision-making and resources targeted at deprived areas. We don't hit any of these buttons but we are still doing our best to operate forward looking local government for the 21st century!"

  1.4  Recent discussions about corporate assessment procedures displayed a clear tendency to give precedence to what were called "upper-tier" authorities, with almost no mentioned being made of the 238 district councils. This omission is now being addressed but serves to demonstrate further the point that local government is composed of a range of different types of authorities which, while all providing local services, face considerably different challenges in so doing.

  1.5  Unitary and shire authorities report greater satisfaction and improved working relations with monitoring agencies and government. However, they do note the need to manage the diversity which remains within local government. The message is "We can all manage difference, but we would like to remind government that one size does not fit all".


  2.1  These powers were welcomed by many authorities but we are concerned that Part 1 of the Act may have lost its way both in the short term and in the longer term. It needs to be re-launched in a more meaningful way.

  2.2  In the short term there has been the conflict of counsel's opinions as to whether Section 2 can be used ahead of the adoption of a community plan. There is still confusion here and much of Local Government feels that they can not use these powers without a Community Plan. The longer-term problem is as to how this power inter-relates with the whole framework of statutory powers and duties already available to local authorities. There are many schools of opinion about this. There are some who believe that we can, effectively, throw away all the service based law books and use Section 2 Local Government Act 2000 as the foundation for virtually all our activities. This is seen as a way of getting around all those inconvenient restrictions upon more specific powers, ie "ultra vires" is dead. While welcomed there is little evidence that this is being acted upon because of different interpretation.

  2.3  One example involves Development Control. Broadly the Planning Acts require each application to be determined taking into account the "development plan" and "material considerations". It has been suggested that Local Authorities could avoid the discipline of "material considerations" (as have been built up in precedent over the years) and use the powers of wellbeing as a way of taking into account all sorts of immaterial considerations!

  2.4  We have heard little since its launch as to how—or even if—it is being used. Although its introduction was accompanied by guidance notes of various kinds, for many legal advisors in local government that launch was a false dawn. At some point its ambiguous form together with experience of its use by practitioners needs to be reviewed. Doing so would then allow for a re-launch. Without such a re-launch, we suspect it will start to gather dust on the shelves of cautious local government lawyers. It is felt that a more rigorous approach to co-ordinate the use of these powers needs to be taken.


  3.1  These raise expectations of elected Councillors which are different and far in excess of those previously required. Higher and more frequent investment of time, a higher standard of aptitude and ability and a greater need for, and time expenditure upon training are all aspects which are leading, in some instances, to mass resignations from councils. This is happening in particular in areas where new electoral boundaries are requiring all out elections, offering an unusual opportunity for members to consider their position in respect of the greatly increasing demands upon them. A large element of concern is witnessed by reluctance on the part of some councils fully to delegate powers to individuals, preference being for these to remain jointly held by the executive.

  3.2  The implementation of the new law allowing individual members of the Executive to take executive decisions on their own varies around the country. It appears that it is dependent on the culture of the authority, the ability and character of the executive members and the portfolio that they hold. Some decisions taken by portfolio holders can be of a strategic nature and fairly cross-cutting, for which they often feel they need the support of their fellow executive members. In these cases the decisions tend to be made by the full executive rather than the individual members. In some instances, for example in-housing there are examples of the executive members feeling that the relative autonomy of the service and the Housing Revenue Account allows them to take decisions without reference to their fellow executive members. These types of decisions are often, therefore, taken by the relevant executive member.

  3.3  The concern for local government is that this new model does not seem to be raising the interest of the public in local government and there is still no evidence that this is increasing the desire for members of the public to come forward and become local councillors. Indeed, if anything, there may be a trend to demotivate backbench councillors who we may find are difficult to replace.

  3.4  Nevertheless, the bulk of local authorities seem to be able to make their new leader and cabinet models work. In many instances across the country, these are starting to bed down and some people have said that they are speeding up the decision making process. The quality of debate is increasing and particularly in shire and unitary authorities members are grasping their delegated authority.

  3.5  This, in itself, raises questions of the officer member relationship and overall council management. It is felt important to separate the executive from the professional administrative functions and to open a wide ranging debate on the new relationships required.

  3.6  Most elected councillors have traditionally been less aware of employment law and human resource issues than their senior management and chief executive colleagues. The marriage of members' new authority in holding delegated power with the requirements of employment law and the Human Rights Act will require longer than a honeymoon period to settle into a constructive partnership.

  3.7  The stronger emphasis on the performance agenda but with (potentially) weakened managerial and organisational leadership is challenging. The emphasis on community leadership and on the role of political executives always looked to have the potential to weaken managerial and organisational leadership. The risk was that political and organisational leadership would be seen as "either...or" (a zero sum game, as opposed to a non-zero sum game in which both political and organisational leadership could become stronger). We are seeing evidence that in some places politicians see themselves as substitutes for professional managers.

  3.8  The new White Paper gives insufficient emphasis to the part which managerial and organisational leadership and capacity will have to play in delivering what is largely a performance agenda. The answer, if there is one, probably lies in the corporate assessment framework which the Audit Commission will use to assess authorities. They need to ensure that organisational as well as political leadership is properly assessed and reinforced. They need to be clear about the difference between executive and administrative leadership.

  3.9  The new political structures demand a political group management structure similar to that which is required in the officer structures. Politicians on executive or other committees need to carry out their responsibility to consult and communicate with other members in ways which did not occur under the previous arrangements. The requirement for members and political leaders to act in ways which are representative of the whole group's agreed views is onerous and risks either all issues being re-debated at full council meetings, or less transparently, issues only being debated within political group meetings and public meetings continuing as the "set pieces" which the new arrangements attempt to avoid.

3.10  Scrutiny

  While there does not seem to be any major problems with the executive/cabinet style per se, there are still some issues around the scrutiny role. The Local Government Act sets up overview and scrutiny committees as a counter-balance to the executive. The role of these committees is twofold. Firstly, to scrutinise decisions taken by the executive and to ensure public accountability (scrutiny). Secondly, the overview role of helping to advise the executive members and to look at specific policy issues.

  3.10.1  It would appear that effective overview and scrutiny is patchy across authorities and even in many of the authorities where overview and scrutiny could be said to be working, the councillors who make up the overview and scrutiny committees are not particularly happy in their new roles.

  3.10.2  Many members are finding the scrutiny aspect relatively easy, in that members have for many years scrutinised officers who have taken reports to the old style committees and questioned them on the content of their report and their recommendations. However, in the new system the frustration comes for many members in not being able to influence the final decision by being able to vote when that decision is being taken. This was a fundamental part of the government's proposals to reduce the number of councillors in the decision making role. Many councillors now feel excluded from this process, even though they have the opportunity to scrutinise the decisions.

  3.10.3  A number of authorities have been quite successful in getting their overview and scrutiny committees to look at detailed operational and policy matters and to make recommendations to their executive colleagues. In this way the councillors do feel more involved but, again, resent the fact that they do not have a final say on the adoption of their proposals.

  3.10.4  In summary, whilst the business of local authorities continues and the executive cabinets can be said to be working effectively, many councillors are still very unhappy with their role on overview and scrutiny committees, even when these are also working effectively.

3.11  Area Committees

  3.11.1  Local and area committees are being set up, again with a range of success. One council notes, "Our approach to Area Councils has proved to be successful. There are eight (too many!) serving our 79,000 people and six towns. Attendances frequently exceed 100 and we have devolved part of our capital programme that is increasingly invested in community projects rather than council infrastructure. Police make good use of these meetings", while another reports that while committees are working well in one part of the district, attendance is almost non-existent in another part of the same district.

  3.11.2  Councils in two tier authorities are running joint area committees, which are also being attended by Police and Parish and Town Councils. Many authorities have developed small budgets to fund area committees but the resultant bureaucracy seems, in some instances, to their expenditure being limited. One council quotes an example of an item being purchased using county Locality funding, in partnership with the District's area committee, which the parish council did not in fact require!

3.12  Partnership Working

  There is a sharper accountability through elected Mayors and political executives but a blurring of responsibility in the proliferation of partnerships. It is increasingly difficult to identify responsibility when so many major projects, and even community leadership itself, are significantly subsumed within LSPs and other partnerships. There is also the risk that the lines of accountability for many participants in such partnerships have only an imperfect and very indirect element of democratic accountability.

3.13  Local Tax Raising Powers

  3.13.1  We have an ideology of sharper political accountability which lacks the taxation responsibility to make those responsibilities real; notwithstanding protestations to the contrary this contradiction is fundamental. The cry of "no taxation without representation" shows that the link between the two is a central feature of democratic political systems.

  3.13.2  It may have been that when local authorities were less concerned to change and improve, the options and possibilities for doing things differently, and better, could be pursued within the framework of a central grant funded regime. But as authorities generally get better, and as performance improves, key choices will increasingly revolve around the possibilities which can only be created by local choice and local tax raising powers to support such choice.

  3.13.3  While this remains so fundamental, at a local level, to the democratic electoral process it will be difficult, especially for councils which have annual 1/3 elections, to make potentially unpopular tax-setting decisions to improve services.

  3.13.4  The new local governance arrangements are making this dilemma more transparent, and in some authorities a healthy debate is beginning about how to "sell" the value of council services. Greater community involvement and council accountability should allow the issue of what standard of council services communities wish to support to be more openly discussed.

3.14  Range of different political arrangements

  The whole system aspires to greater accountability but the proliferation of models and approaches blurs in its complexity. It has never been easy for the general public to understand the differences between the different types and levels of authority. This use of different political systems of political executives makes it even harder for that to be accomplished. We may have to face the fact that local political and governance systems are going to seem even more remote for many people for the foreseeable future simply because there may not be the clarity which is so important to understanding, discourse and engagement. The greater complexity in the legal framework—both from the different forms of political executive and the differentiation of powers contemplated in the recent White Paper as correlates of the various performance categories—further blurs understanding.

3.15  Regional Government

  There is an emerging 21st century regional agenda... and 19th century Local Government structures. Much depends, of course, on what form Regional Government might take, and the process by which regions might accomplish their aspirations for greater autonomy in their own governance. There is a need to ensure that Regional and its associated Local Government is planned and restructured (if such proves necessary) on a coherent basis, and within a timescale that does not allow a lengthy descent into uncertainty. Currently the range of different arrangements risks public confusion and the issue of representative democracy, which is not being grasped, is leading to a lack of investment by councils controlled by political groups different from that which is in control at region.


  4.1  Local Government places the greatest importance upon high ethical standards and was therefore delighted when after many unfulfilled promises of reform, the nettle was finally grasped in 1997. However we have to admit to some disappointment as to the way in which this promise has been fulfilled in practice.

  4.2  The time for reform of Ethical Standards was long overdue. The 1989 reforms did nothing to try to simplify the then structure but just added more which made things even more complicated and obscure for the average councillor. So, sweeping away all the previous layers of control and replacing them with a single code was a very good idea, but the Model Code which has been produced does not meet its own objectives. It needed to have been written in Plain English from the perspective of the councillor—rather than from the perspective of the enforcer.

  4.3  It could have been written as a series of simple, practical advice notes and preferably not in such legalistic terms. If that was necessary then its introduction should have been accompanied by helpful advice notes to which the average councillor could turn for broad advice when s/he did not feel strong enough to wade through all the wherefores and hereuntos.

  4.4  Much greater thought could have been given to the range of councils affected with a good deal more pragmatism as to the levels of control needed over—say—small rural parish councils. It is questionable to have the full Model Code—with all its registration duties—imposed upon the sort of business that a parish council does for a parish with say, 100-200 electors. This is already having an impact and its full effect is yet to be realised, but it is likely to change the relationships at best and to result in a lack of people wishing to stand as councillors at worst, particularly at parish level. The opportunity could easily have been taken to apply the principal council controls in a graded way which fitted in, in a sensible way, with the size and function of different ranges of parish councils. It appears that the "one size fits all" approach was taken because of a continuing failure to distinguish between the problems of a large urban area and the very different needs of small rural parish councils which carry out very few significant services or functions.

  4.5  The result of this error is that it is likely that for hundreds of parish councils up and down the country, the whole issue of "Ethical Standards" will simply not be taken seriously because of its clear irrelevance to the role of many parish councillors. This would be a lost opportunity. For the new Ethical Standards to be effective and self-policing they need to be simple, straightforward, obviously relevant and important and largely enforced by informal pressure from each parish councillor's peers. It is our opinion that the Parish Council Model could fail on all counts and could damage—rather than strengthen—the impact of the new structure.

4.6  Masons

  We were very disappointed that the words "private club" were removed from the Model Code. This is a major lost opportunity. Instead of a fresh clean start to new and higher standards of ethics—we were immediately reminded about the worst examples of ethics in Local Government and the apparent powerlessness (or unwillingness) of Government to address the secretive and insidious nature of such "clubs" with their, inevitably, prejudiced outcomes for local government.

  Not only have the reasons for its removal not been published but we have not heard or seen anything to suggest that the temporary problems which caused this last minute change of heart—are being worked on and are to be solved.

  4.6.1  The words "private club" were deleted but other associated words remain without any guidance to people at the sharp end as to how we are to deal with the confusion that was thus created. For example, in paragraph 15 of the Model Code (for principal councils; or paragraph 13 for parish councils) despite the deletion of "private clubs", paragraph 15 now includes a duty to register "his membership or body directed to charitable purposes...". So it seems that having to register membership of Round Table, Rotary or the Masons would have been contrary to (perhaps) the Human Rights Act—as a "private club", yet a duty to register membership of any of those same bodies as a charity or a body directed to charitable purposes would not infringe the Human Rights Act.

4.7  Credibility and Respect

  As mentioned above, much of the power of a new set of Ethical Standards depends upon these two rather old fashioned words. Some examples of that are given above. But there are others. For instance, whilst the "big principles" of the new Ethical Standards and the early drafts were all produced on time, the detailed implementation has lagged behind with many promised deadlines having passed and with little information flowing as to what happened (or is to happen) to the various promises. An example of this was with the publication of the Code itself which drifted through eventually to 5 November 2001. The Dispensation Regulations have been long promised and are not yet in place despite the fact that a number of councils have (bravely) adopted the new Code immediately after its publication in November.

  4.7.1  There is a continuing lack of certainty as to the future relationship between on the one hand the Standards Board and its Ethical Standards Officers and, on the other, Standards Committees and their Monitoring Officers. It is understood that the primary legislation may not even allow for a sensible split of functions to take place. It now appears that the Standards Board and Ethical Standards Officers will need to deal with all complaints. That is quite ludicrous not only in terms of workload (the workload from parishes could be very large) but in terms of "punishment fitting the crime". We can well imagine that the Standards Board during its first year will be overwhelmed with complaints.

  4.8  Despite these criticisms, we remain convinced that the Ethical Standards Review was thoroughly worthwhile. What disappoints us is the opportunities that have been lost; we hope that through the work of the Select Committee they can be revived.


  5.1  Broadly, the new Local Government Act is welcome. There are some key challenges which are yet to be met and much more cross-Council debate is required, possibly nationally led to establish and learn from best practice.

  5.2  Attention must be paid to resource issues, particularly of smaller councils and some blueprints for implementation, emerging from debate could be standardised preventing use of precious time or re-inventing structural wheels.

  5.3  Finally, in laying down various new and transparent directions the Act missed the opportunity to embody in law the requirement to adopt different, more respectful behaviours. These "soft" issues as described in the recently launched PSP paper "Making a Difference" (Foster, Parston and Smith, 2002) are well evidenced to motivate people to improve performance. Until the so-called soft issues become "hard" by demand of statute, or by a requirement to be monitored, or both, they will not be accepted by hard pressed officers slavishly delivering to more tangible performance indicators, or hard pressed politicians striving for improved service without seeing that basic respect and a few "thank yous" all round could do the trick!

  5.4  Local Government is trying to deliver modernised democracy locally. It would be helpful, occasionally, to be recognised for what we are achieving rather than criticised for what may be yet to come.

  We look forward to discussing this document with you.

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