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Memorandum submitted by the Local Government Information Unit (LGIU) (LGPI 9)
1.0 Local Government and Public Involvement in Health Bill
1.1 Introduction The inclusion of the Local Government Bill in the Government's legislative programme is very welcome. Parliament can build on the Local Government Bill to deliver the devolution promised in the Local Government White Paper.
1.2 There are three key areas that should be focused on in the Bill in order to deliver real devolution of powers to local authorities: · Local accountability: enabling local government to be shaped according to local priorities and preferences · Delivery: providing enhanced influence to local government to secure local priorities · Constitutional settlement: formalising a strategic relationship between local and central government
1.3 This memorandum considers these three themes in relation to the proposals to revise executive arrangements; to establish local area agreements and make arrangements for local and national targets; to extend powers of scrutiny. We also believe that the time has come for the constitutional position of local government to be recognised in legislation.
2.0 New Clause 2: Roles and responsibilities of local government
2.1 We have noted new clause NC2, with its proposal to secure agreement on the separate spheres of influence of central and local government. We welcome this proposal as a step in the right direction, and as valuable in initiating discussion on the key principles of the constitutional position of local government. LGIU believes that the role and purpose of local government should be recognised on the face of the Bill.
2.2 The Local Government White Paper, Strong and Prosperous Communities, emphasized the importance of the local authority's role as a place shaper for its area, creating responsibilities for leading and coordinating relationships between public bodies providing local services, and being responsive to, and empowering local communities. The government is committed to devolution, and there is a consensus among the political parties of the need to strengthen and reinforce change and reform in this direction.
2.3 LGIU has long argued the need for a broad statutory statement of the role and purpose of local government. The UK falls behind other European countries in lacking a statement of this kind. There are differences, in that the UK does not have a formal constitution: this in itself is not an argument against defining the responsibilities and roles of public institutions in a way that clarifies and supports our democratic process. Recent reviews of the role and purpose have emphasized the need for such clarity. The Power Inquiry, and most recently the Lyons review, has identified the need for a formal constitutional settlement.
2.4 Sir Michael Lyons wrote, in suggesting a formal constitutional settlement that would underpin long-term and sustainable change, "I certainly believe that now is the right time to make a fresh start in the relationship between central and local government and to place that relationship on a more explicit footing". The House of Lords made recommendations for restoring trust between central and local government in 1995-6, and although many aspects of the central/local relationship have progressed since their report, the need for strengthening that relationship, and for underpinning trust with specific measures, is still strong. (Rebuilding Trust HL Paper 97)
2.5 The principles should confirm the leadership role of local government in the world of local governance, and give clarity to its responsibilities for managing local services, or ensuring the delivery of local services in the interests of local people through formal influence. The role of local authorities, in piece-shaping, is now broadly understood as being to promote the economic, social and environmental well-being of their area, and to enable and promote democratic participation in communities and neighbourhoods.
2.6 Conclusion LGIU welcomes the opportunity to explore the issues in debate, and would welcome a consensus that would ensure that the process of devolution, and rebuilding of trust between central and local government, is sustainable and lays the foundation for long-term change.
3.0 Clauses 39 & 40: Changes to executive arrangements and Clause 166: Exercise of functions by local Councillors
3.1 Leadership models: The Bill requires all councils (other than small districts) to move to one of three leadership models, all of which have power concentrated in one individual for a four year period. LGIU supports a wider range of options being available.
3.2 The three models proposed are:
·. A directly elected mayor, elected for a four year term, with cabinet · A leader elected by the council for a four year term, with a cabinet chosen by the leader · A leader and cabinet directly elected for a four year term (on one slate) All executive powers would be by law vested in the leader or mayor, who can then choose whether and how to delegate them.
3.3 At present, all councils have constitutions and executive arrangements introduced recently following the Local Government Act 2000. The existing options are: elected mayor and cabinet, elected mayor and council manager, leader and cabinet, plus a streamlined committee option for small districts. There are various options within leader and cabinet constitutions, where either the leader or the council as a whole: elects or chooses the cabinet or decides who within the cabinet exercises the various executive powers.
3.4 LGIU believes that all councils should have a wider range of constitutional options, and local choice about which are implemented. There should be a wider range of models for councils to choose from according to their local needs. The requirement that all executive powers would belong to the leader or mayor should instead be available as a constitutional option, with an alternative option of a scheme of delegation agreed by the council as a whole. A constitution where the council as a whole elects the cabinet should be permitted. None of the options brought in by the Local Government Act 2000 should be removed. There should be additional options which councils could adopt, which could be introduced using the Secretary of State's powers in the 2000 Act. These could include area-based alternatives, or directly elected cabinets elected as individuals.
3.5 Our reasons: There is no evidence to support the case that all councils should change their executive arrangements; the government's own research says that councils have implemented the Local Government Act 2000 well. Change should be incremental within that framework.
3.6 The council as a whole should have a clear role in determining and reviewing the council's constitution, ensuring strong community leadership and an effective role for all councillors.
3.7 The current constitutions have been implemented relatively recently and were the subject of considerable public consultation.
3.8 Over centralisation of power on one individual undermines the roles of other councillors, whereas we need to be attracting people into this role.
3.9 There is no evidence that councils with directly elected mayors have better performance; there is excellent performance from councils with a range of constitutions. The fact that two thirds of mayoral referendums under the 2000 Act were 'no' votes indicates some public wariness of too much centralisation of power on one individual.
3.10 We should avoid an over-simplified view of strong leadership. Shared, team leadership can also be effective, drawing on different talents and backgrounds, and better reflecting diversity. In other legislation the government has promoted separate statutory responsibilities for specific cabinet members, for example for children's services, and crime and disorder matters. Constitutional models need to support this. Effective local government leadership also has a balance between political and managerial leadership.
3.11 There is need to take more account of local circumstances; the proposed options will suit some councils well, but not others. Councils with no overall political control or with other different local circumstances will need more inclusive and broadly based models of leadership. The proposed centralisation of power may also not support the government's wish to see innovative forms of working in two-tier areas.
3.12 Clause 166 provides for devolution of power where the Leader or Mayor wishes to ward councillors. Such devolution is welcome, but if it is to be left to the discretion of the Leader, may be unlikely to happen in many cases. This provision should be the responsibility of the whole council who determine the constitution, as well as its executive.
3.13 In conclusion, LGIU believes that the restricted options and centralisation of executive powers in one individual undermine the objective of decentralisation and local choice expressed elsewhere in the White Paper.
4.0 Clause 81: Duty to cooperate: Local Area Agreements
4.1 Summary: The Bill aims to ensure cooperation on local area agreements by named public sector partners, but does not clarify how this will be achieved in practice. We support adding specific measures that will help local authorities to achieve cooperation.
4.2 The Bill at present requires that named local partners cooperate with the local authority. This duty to cooperate applies solely to the process of agreeing targets specifically relating to that partner organisation for inclusion in the local area agreement. [Clauses 81(2) and 81(3)]
4.3 LGIU believes that two pragmatic measures should be added to the duty to cooperate to give it teeth and clarity:
· Specifying a minimum standard for responding to consultation. The Cabinet Office has published a code of practice for consultation that all government departments are expected to adhere to when undertaking public consultation. The code specifies a minimum of 12 weeks for written consultation. We propose clarifying that, provided the local authority specifies a window for responses from partners that meets the minimum 12 week standard, that any partner who does not respond within the published consultation window should be considered to have breached the duty to cooperate.
· Identifying a performance improvement process that can be triggered where there is a breakdown in cooperation. The current reform of inspection provides for a new gatekeeping role for the Audit Commission who will coordinate inspection in localities across the four inspectorates. We propose an additional role of coordinating the collection of information on breaches of the duty to cooperate to be fed into the relevant inspectorate for the partner organisation in question, with the outcome that the organisation's performance assessment reflects their breach.
4.4 Reasons: Our recommendation is based on the prior experience of local authorities in statutory partnerships. The Crime and Disorder Act 1998 created a statutory requirement to create a Crime and Disorder Reduction Partnership (CDRP) in each local authority area. Evaluations have been carried out on the operation and success of these statutory partnerships, and it has been documented that, though partner organisations were named in the legislation, cooperation was not always achieved:
· The Audit Commission's report on CDRPs, Community Safety Partnerships (July 2002), identified that cooperation across the country was variable from probation services, health and fire services, though all of these are covered by statute. · The Home Office has also published research, Making Partnerships Work (July 2001), showing that CDRPs have failed to secure cooperation in practice on multi-agency agreements, even though agreements were made through statutory partnerships.
4.5 The organisations in question are all public sector bodies who share common ends of promoting the public good, and there is a common recognition of the need for partnership work to achieve public good. Therefore failures in cooperation should be seen as failures in performance, not deliberate acts. Therefore our proposals are designed to guide organisational behaviour by using principles of good performance management:
· that good performance depends on clarity about what is expected · that poor performance is addressed by a response that is predictable, proportionate and ensures the poor performer is aware that their behaviour is considered to be unacceptable.
4.6 In conclusion, the duty to cooperate needs to be made relevant for the real world and the means to achieve this is to use simple performance management principles to change organisational behaviour.
5.0 Clause 82: National and local targets
5.1 Local area agreements may include locally determined targets as well as targets negotiated with central departments. The Bill should reflect the commitment in the Local Government White Paper, that locally determined targets would be entirely at the discretion of the local area, not the Secretary of State, and the commitment to have a maximum of 35 centrally negotiated targets.
5.2 The Bill at present describes the process for signing off a local area agreement as follows:
· The local authority prepares and submits a draft to the Secretary of State. [clause 81(2)] · The Secretary of State either approves the draft or requires the local authority to change it. [clause 82(1)1 · When the Secretary of State approves a draft he designates the targets that have been negotiated with central departments. [clause 84(1)] · Targets that have been designated can only be removed or changed with the permission of the Secretary of State. [clause 85(1)]
5.3 LGIU believes that the process described in the Bill should identify the targets negotiated with central departments at the start of the process, so that it is possible to avoid giving the Secretary of State the power to require a local authority to change targets that are entirely of local concern. This could be achieved by:
· removing the concept of a "designated target" · introducing a distinction between a "local improvement target of local concern" and a "local target of national concern".
5.4 We also propose removing the process of designating targets and replacing it with a requirement that the Secretary of State to produce a list of centrally negotiated targets (local improvement targets of national concern) while the local area agreement is being drafted and before it is submitted for approval. This would provide an opportunity to clarify the government's commitment to ensure that the centrally negotiated targets do not number more than 35.
5.6 Reasons: The Local Government White Paper, Strong and Prosperous Communities is clear that the new vision for local area agreements is for a small number of centrally negotiated targets, and the rest will be "purely driven by the LSP" (paragraph 5.35) and not reported to government (paragraph 6.39). The aim is to "create more space for local flexibility and responsiveness" (paragraph 6.39).
5.6 For this vision to be realised, it is critical that the powers given to the Secretary of State be limited to reflect the limited interests of central departments in certain targets, leaving the other, local targets, protected from interference.
5.7 The Bill as it is currently drafted does distinguish between locally negotiated and centrally negotiated targets, through the concept of the "designated target". However, because the process of designation takes place once a draft is submitted for approval, the Bill does not provide for limiting the powers of the Secretary of State within the approval process itself.
5.8 Specifically, clause 82, page 55, line 20 gives the Secretary of State the power to require a local authority to modify the draft local area agreement - which means the entirety of the draft including the locally negotiated targets. By distinguishing between "local concern" and "national concern" early on, LGIU's proposal would limit the power given to the Secretary of State, and exempt local improvement targets of local concern from being modified at the approval age.
5.9 In conclusion, the Bill at present goes some way towards reflecting the need for local discretion in setting targets for local improvement but some careful amendments would bring the legislation closer to the vision set out in the White Paper.
6.0 Clauses 924: Powers of scrutiny
6.1 The Bill provides new powers for councils to scrutinise agencies' performance in meeting LAA targets. We would like to see this extended to strengthen scrutiny of other local issues of concern to the pubic, by requiring pubic services to respond to council scrutiny.
6.2 The Bill at present gives scrutiny powers over named external agencies, which is confined to their involvement in specific targets in the Local Area Agreement.
6.3 LGIU would like to see measures which would extend the scope of scrutiny of external agencies beyond the LM targets to other issues affecting the local area. This would extend local government scrutiny of local services, in line with the current power of scrutiny of heat services, and forthcoming powers (Police and Justice Act 2006) over police and other crime and disorder partners. Councils can at present scrutinise any issue affecting the area, but this power should be developed to require cc>operation and response from the agencies and services concerned.
6.4 The Bill should make it a requirement that the services listed as having a duty to co-operate with LAM should also: have a wider obligation to take part in local government scrutiny of local issues; to attend and to provide information; to respond to the scrutiny findings and recommendations; and an obligation on agencies to have regard to those recommendations.
6.5 We would also like to - the list of agencies which have a duty to co-operate with local government scrutiny extended to include: further and higher education, housing associations with significant number of properties in the area, transport providers, utilities, telecoms providers, and the post office.
6.6 We would also like to see scrutiny powers enhanced so that it is clear that contractors who are under contract to provide local government services, and other externalised services funded by the council are required to respond to council scrutiny.
6.7 Reasons: LGIU welcomes the proposals to strengthen local government scrutiny of external agencies and public services and believes that extending them will make them more effective and responsive to local problems.
6.8 The evidence from scrutiny of heat and other issues, is that local government scrutiny will strengthen partnership working, encourage dialogue and user engagement, and find new solutions to local problems. It will encourage joined up working. The extension of scrutiny to external partners will make partnerships more accountable to the communities for which they are working.
6.9 If the duty to respond to scrutiny goes beyond specific LAA targets agreed by partner agencies, and is extended to other issues of public concern, this will support the community call for action. It will give the council scrutiny powers to require agencies to engage in a dialogue with the public on issues of public importance locally. This will strengthen the council's community role (such as transport, post office closures, flooding and other environmental issues).
6.10 It will help bridge the democratic deficit, as so many public services are not under local democratic control. It will provide a means to bring to the attention of large, sometimes national agencies, issues which are not being resolved locally, require them to communicate better, and gain a better understanding of their users. The council will be able to support the public and users in gaining access to information about services.
6.11 Many services associated with, and often funded by, councils are now externalised, provided by contractors, trusts, and organisations such as ALMOs (arms length management organisations, particularly in housing). In order to maintain democratic accountability for users and citizens, these should also be subject to scrutiny.
6.12 In conclusion, LGIU believes that scrutiny has been shown to be an effective tool of partnership building and local accountability, and that it should be extended.
February 2007
LGIU I the Local Government and Public Involvement in Health Bill I |