Select Committee on Transport, Local Government and the Regions Memoranda

Memorandum by Manchester City Council (LGA 32)


  Section 2 of the LGA 2000 gives local authorities a new power to promote the economic, social and environmental well-being of their area.

  This is a useful new power which has enabled the authority to do things for which it previously did not have the power or where the legal powers were uncertain. Particular examples include the giving of guarantees, the establishment of a partnership register and greater scope to provide financial assistance to other organisations.

  The weakness of the new provisions lies in the limits on the power in Section 3 of the Act. These include the prohibition of using the power to raise money. This effectively prevents the Council from charging for any new service provided under Section 2.

  Perhaps a more serious weakness is the ambiguity of Section 3(1) of the Act. This provides that: "The power under Section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)".

  DTLR have advised in their guidance that this only prevents the use of Section 2 where there is an express prohibition, restriction or limitation. Although this guidance is convincing in the case of prohibitions, it is less so regarding restrictions and limitations. Some Leading Counsel have taken the view that Section 2 cannot be used where there is an implied restriction or limitation in other legislation. It has been argued that where there is a well-defined body of law on a matter which sets out what local authorities may do, Section 2 should not be used to extend those powers.

  Although we feel that this latter view is over-cautious, we are aware of other instances where legislation contains fairly express restrictions and limitations and the DTLR have still taken the view that the power in Section 2 is still available. These differences in interpretation leave local authorities in a difficult position. They also affect whether the Secretary of State will use his power under Section 5 of the Act, which enables him, by order, to amend, repeal, revoke or disapply any enactment which he thinks prevents local authorities from using their Section 2 power. This part of the legislation needs to be clarified.

  It is also felt that the scope of the power in Section 2 should be expanded to include power to regulate to promote, in particular, environmental well-being.


  The Council's main concern with the operation of Part II of the Act is that the legislation and, more particularly, many of the regulations and statutory guidance made or issued under it tend to be over-prescriptive, inflexible and not conducive to efficient decision-making. Our particular concerns include the following.


  The regulations define precisely what functions cannot be executive functions. All other functions must be executive functions unless they are one of a small number of local choice functions (where the Council can decide whether they should be executive or non-executive) or they are part of the budget and policy framework (where both the Executive and the Council have responsibilities).

  The Council sees two problems with this. Firstly, certain functions which should clearly be non-executive as they are similar to other non-executive functions have been omitted (possibly inadvertently) from the list of functions, eg certain minor highway functions. Secondly there are other functions (eg Traffic regulation orders) which could arguably be either executive or non-executive functions. We believe that the split between executive and non-executive functions should be reviewed, with consideration being given to expanding the number of local choice functions. Where there are arguments either way, it should be a matter for local choice. In particular, we would like to see Councils having the opportunity to discharge highways and traffic functions through one Committee.


  Local Authorities (Standing Orders) (England) Regulations 2001 required local authorities to adopt Standing Orders relating to the employment of officers.

  One of these requirements is that no Chief Officer or Deputy Chief Officer can be appointed or dismissed until every member of the executive has been given an opportunity to object to the appointment or dismissal and, in the case of any objection, until the person or body appointing or dismissing is satisfied that any objection is not material or well-founded.

  This is felt to be a bureaucratic nightmare. It is also contrary to the Government's aim of transparency and accountability. The Regulations provide that the appointment or dismissal of staff is a non-executive function. They also provide that any panel appointing or dismissing a chief officer or deputy chief officer must include a member of the executive. It is unnecessary and inappropriate in our view to involve other members of the executive in the decision-making process when they will not have been present at the interviews in the case of an appointment or at the disciplinary hearing in the case of a dismissal.

  Another requirement is that members cannot be involved in appointments below deputy chief officer level (except in the case of political assistants). This provision is generally supported. However, there are certain posts which work directly to Members (eg secretaries/personal assistants) and are outside the definition of political assistant. In such cases it is felt that the involvement of the relevant member on the appointment panel should not be excluded.


  The Regulations require the Council to adopt Standing Orders to deal with differences of opinion between the Executive and the Council in relation to the budget and policy framework. Again, the Regulations are over-prescriptive and inflexible because they effectively require two Council meetings in circumstances where the Council may wish to amend an executive proposal, even if that amendment is not fundamental. Even the DTLR recognise the problems this could cause in certain circumstances because in relation to the budget which has a statutory timetable they have effectively exempted from this requirement proposals made by the Executive on or after 8 February in any financial year. These requirements should be reviewed.

  It is felt that these Regulations (and those relating to officer employment) have been imposed on all Councils with executive arrangements when they are only relevant to hung Councils or those with an elected mayor.


  The existence of two separate systems of access to information for Executive and non-Executive decisions is a considerable administrative burden and, more importantly, totally confusing to the public for whose benefit the rules were designed. Consideration should be given to providing for a less complicated procedure.


  The City Council is strongly in favour of making the decision making process as open and publicly accessible as possible and supports the principles behind the Forward Planning and Key Decision process. Such procedures, however, must recognise that running a large local authority like Manchester with thousands of employees and a capital programme in the hundreds of millions is a complex business.

  As presently framed, the rules are over prescriptive and too involved in small detail. The procedures need to be simplified not only to reflect the realities of the work of a large organisation but just as importantly to make them more understandable by members of the public. At present the cumbersome nature of the Plan is not helpful to members of the public and the procedures are wasteful of members' and officers' time.

  The content of the Plan should be streamlined to need to show just the decision, decision maker, date of decision and contact person. There should be opportunity for the Plan to be updated weekly without having to go through the urgency procedures, although it is accepted that cases of special urgency or exemption from call-in should require Overview and Scrutiny chair approval. Failure to comply with the forward planning procedures only should not be grounds for overturning a decision.

  The position with regard to the definition of a key decision needs to be clarified. The Guidance and the Regulations are at variance. For example, the Guidance suggests that local traffic calming measures affecting part of a ward should be treated as significant whereas the Regulations clearly refer to two or more wards. The Statement in the White Paper that local authorities are best placed to make the choice as to what constitutes a key decision is welcomed but early positive advice is now needed.

  The provision which prevents the Executive meeting in private to discuss a matter in the Forward Plan where a decision is likely to be taken within 28 days is unnecessarily restrictive and needs to be reviewed.


  The provisions of the Act limiting the size of the Cabinet to 10 should be reviewed with a view to increasing that number in the case of unitary authorities which have a wider range of functions than in two tier areas.

  It is also considered that DTLR should review the provision which prevents the Council appointing formal deputy /substitute members of the executive to act in the absence of an executive member.


  The provisions relating to joint arrangements have caused considerable confusion by causing existing arrangements to fall by the adoption of executive arrangements by just one authority. The requirement to appoint Executive Members to Joint Committees of less than five authorities carrying out executive functions is over prescriptive.


  It is early days to make any judgements about Part III of the Act. The Council recognises the importance of high standards of conduct of elected Members and officers to the future reputation and effectiveness of local government whilst believing that the majority of Members and officers currently maintain exemplary standards.

  In any national system regulating standards of conduct, it is essential that there is clarity about the required standards and procedures for dealing with complaints about breaches of these, not only for the Members and officers concerned but in order to engender public confidence in the system.

  The introduction of the new Model Code and the National Framework for the development, monitoring and enforcement of standards of conduct should assist in achieving clarity and consistency as well as public confidence. In order to do this, however, the government and the Standards Board need to be pro-active in issuing guidance and regulations, as appropriate, and to keep the Code and system under review on a regular basis.

  The chief concerns at the moment about the system, where there still seems to be a considerable lack of clarity, include:

    (a)  Uncertainty about the role and remit of the Monitoring Officer and Local Authorities' Standards Committees, particularly until regulations are made under Section 66 of the Act, relating to cases referred back to the Monitoring Officer by the Ethical Standards Officers;

    (b)  Uncertainty around the interpretation of the Model Code which is to be adopted by local authorities by 5 May 2002 on which Monitoring Officers have to advise until case law emerges and substantial guidance is issued by the Standards Board;

    (c)  The adequacy of protection for Members against ill founded and malicious complaints; and

    (d)  There is no recognition in the Code or elsewhere of situations which may arise where there is no prejudicial interest as defined by the Code preventing a Member participating in decision making but where there could, nevertheless, be conflicts of interest which might also affect the validity of the decision in the light of some recent confusing cases.

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