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Memorandum Submitted by the Commission for Racial Equality (LGPI 3)
Local Government and Public Involvement in Health Bill
Introduction
1. The Commission for Racial Equality was established under the Race Relations Act 1976 with the duties of working towards the elimination of racial discrimination and the promotion of equality of opportunity and good relations between persons of different racial groups.
2. Given these duties, the CRE has considered the likely impact on race equality and race relations of the proposals in the Local Government and Public Involvement in Health Bill and this briefing contains an initial assessment of the provisions of the Bill.
3. Local authorities have a duty to promote race equality and good race relations under the Race Relations Act 1976 as amended so it is important that any proposals for changes to the structure and functions of local authorities demonstrate that these duties will be better delivered by such changes.
4. We believe that any changes to the structure and operation of local governance should uphold the principles of transparency, accountability, effectiveness and equity. Furthermore local authorities should use their powers to ensure that they benefit and empower all citizens and communities equally, with a particular focus upon the most disadvantaged whose lives are likely to be greatly affected by the services that local councils deliver.
5. Whilst the CRE welcomes many of the provisions in the Local Government and Public Involvement in Health Bill, such as an extension of the Best Value Duty to include greater engagement of communities in the delivery of services and the inclusion of key community groups in parish, community, neighbourhood or village councils we are concerned that the Bill and the Local Government White Paper "Strong and Prosperous Communities" preceding it, does not adequately address risks associated with devolving greater powers and flexibilities to Local Government, predominantly the risk of exclusion of minority and disadvantaged groups. There is also a lack of detail about how measures within the bill and those contained in the White Paper will ensure that they promote equality and have a positive impact upon race relations.
6. The CRE's primary points of concern with the Bill at this stage are the:
· Changes to the executive arrangements available to local authorities · Inclusiveness of community governance arrangements, including "Community Calls for Action" · Revisions to the Inspection and Performance Framework · Revisions to arrangements for the regulation of ethical standards · The establishment of Local Involvement Networks in place of Patients' Forums
On these points the CRE would like to ensure that:
· new executive arrangements do not adversely impact upon the ethnic minority political representation at an executive or leadership level - this will require ethnic monitoring arrangements · that Parish/Community/Neighbourhood/Village Councils are inclusive and compliant with the general duty of the race equality duty - this should be monitored · "Community Calls for Action" are operated fairly and are ethnically monitored centrally to ensure that all citizens' views are equally championed and investigated · equality and good race and community relations are present amongst and mainstreamed across all of the relevant 200 national performance targets and local improvement targets as well as constituting a risk criteria to trigger external inspection. This would involve collecting specific data on ethnic minority "performance" against the majority population to measure equality or inequality for each target its associated performance indicators. · ethnic minority communities and voluntary and community groups are actively involved in the management of the Local Area Agreement, particularly in setting and revising local improvement targets · revisions to the ethical standards regulations are effective in ensuring that all members uphold the race equality duty - this will require monitoring arrangements · Local Involvement Networks are representative and proactive in incorporate the views of hard to reach groups and disadvantaged communities - this will require monitoring arrangements for ethnicity and other groups
There is a clear need for monitoring arrangements to assess and evaluate the impact of all revisions and new functions introduced by the bill.
7. In addition there are a number of notable omissions from the Bill that are contained in the White Paper on which the CRE would like further clarification and guidance:
· Neighbourhood Charters · Community ownership and management of assets · Support for councils facing Community Cohesion pressures including guidance for Scrutiny and Overview and the establishment of forums to tackle extremism · City Regions
8. A Race Equality Impact Assessment (REIA) is a tool to work out how a policy or legislative proposal will affect people from different racial groups. Failure to produce a REIA, where relevant, could leave public bodies listed under the Race Relations Act in breach of the General Duty to:
· Eliminate unlawful racial discrimination · Promote equality of opportunity · Promote good race relations between people of different groups
This paper refers to the REIA of the Local Government White Paper "Strong and Prosperous Communities" in addition to the Regulatory Impact Assessment (RIA) of the Local Government and Public Involvement in Health Bill. The RIA of the Bill only covers provisions in the Bill that were not included in the White Paper.
EXECUTIVE ARRANGEMENTS FOR POLITICAL MANAGEMENT
9. Part 3 of the Bill, Clause 39 requires any council in England which operates executive arrangements to operate one of the following models: · Leader and Cabinet executive (England) · Mayor and Cabinet executive · Elected executive Clause 42 Councils states that where a council previously held a referendum on their current executive arrangements they must also hold a referendum to change these arrangements to one of the three models.
10. The CRE are concerned about the lack of ethnic minority representation in political power at a local level. In 2004 only 3.5% of councillors in England came from an ethnic minority group, in comparison to ethnic minorities constituting 8.4% of the adult population.[1] This lack of representation is even greater at the leader and executive member level.
11. We believe that the directly elected mayoral and executive model is likely to have a further adverse impact upon ethnic minority representation at local authority leader and executive member level. The Race Equality Impact Assessment of the White Paper acknowledges this as a risk in relation to the directly elected mayoral model. However the Department for Communities and Local Government (DCLG) state that this centralisation will be mitigated by strengthening local accountability of executives to all councillors and to local people, presumably by measures such as the "Community Call for Action". This is not an acceptable alternative to representative ethnic minority participation at the highest level of local political leadership and management.
12. A lack of representation amongst local authority councillors is clearly a concern for Government as it was acknowledged in the Local Government White Paper "Strong and Prosperous Communities" where the Government announced a review of barriers and incentives to serve as councillors with a view to seek ways to promote greater diversity, which the CRE welcome.
13. Therefore, it unadvisable to introduce and encourage the new models of executive arrangement without commitment to monitor their impact on ethnic minority representation at Mayor, Leader and Executive level.
14. Clause 50 amends section 45(1) of the Local Government Act 2000 so that local authorities in England may not hold more than one referendum in any period of ten years, which is an extension of the previous provision for five years.
15. Given the concerns about the new models of political management the CRE are concerned that the Bill reduces councils' powers to repeal executive arrangements (in relation to Clause 50) if they are found to have an adverse impact upon ethnic minority political representation.
PARISH COUNCILS AND COMMUNITY GOVERNANCE
16. Part 4 of the Bill provides for the devolution of power from central government to local government, enabling principal councils to make governance arrangements for local areas at a community level. Chapter 3 also introduces the right for local people to petition for a community governance review.
17. Part 5, Chapter 2 also revises overview and scrutiny arrangements to introduce a "Community Call for Action" which will give councillors the right to refer any local government matter related to their ward to a relevant scrutiny committee.
18. The CRE is committed to empowering communities and promoting community engagement and involvement in political decision-making and public service delivery. We also welcome the introduction of community governance reviews which enshrine the principle of local self-determination.
19. However, the CRE have concerns about the inclusiveness of such community or neighbourhood governance structures and their impact upon community cohesion. The CRE have recently conducted research into participation by people from ethnic minority backgrounds in Local Strategic Partnerships (LSPs) in receipt of Neighbourhood Renewal Funding (NRF). The study revealed that only 32% of these LSPs had set aside places for ethnic minority representatives within the core structure and only 42% has set aside places in the wider LSP structure. This is despite an inclusivity criterion for partnership working incorporated in the performance management framework that NRF-funded LSPs operate under.
20. This concern about a lack of ethnic minority participation is acknowledged in the REIA of the White Paper which sets out the agenda for increased neighbourhood governance and empowerment. The REIA acknowledges the need for local councils and councillors to adequately engage with local communities through the use of community outreach workers to engage with hard to reach communities. This work would be resource intensive and require specific skills as well as faith in local democracy and local councillors. In addition, there is a risk that vulnerable individuals can be manipulated to raise and legitimise others' concerns.
21. In addition the REIA of the White Paper promotes adherence to and use of the extended Best Value duty, on which the Government will produce guidance. However, it stops short of mandating actual involvement by ethnic minority individuals and groups and it fails to outline monitoring arrangements and monitoring powers to ensure equality of participation.
22. The REIA also makes clear that the legitimacy of community calls for action will not be based upon whether an issue represents a majority viewpoint. Councillors will have to act responsibly to ensure that credible minority concerns are triggered even if they are unpopular in a local area. The subjectivity involved in the process however leaves it open to discrimination. However, where used well they could act as a powerful tool to tackle discrimination directly. There must be monitoring arrangements put in place to ensure that all people and communities are equally empowered by these provisions.
23. Whilst the CRE agree that empowering communities to be able to influence decision-making and service delivery is positive, relinquishing control of such structures poses risks. For example, the establishment of community councils, potentially with small devolved budgets for local environmental improvements may lead to differentiation and resentment in a local area, hindering community cohesion.
24. Whilst the CRE welcome provision under Part 4 of the Bill for revisions to the names of Parish Councils to also incorporate Neighbourhoood, Village or Community we are concerned about the lack of representation of such structures. Last year less than 10% of parish council seats were contested. However, representation should be improved by the provisions under Clause 55 of Part 4 of the Bill which allows for the appointment to local councils of key local community groups. The Bill needs to ensure that these groups in addition to neighbourhood/community/village/parish councillors represent a diversity of interests, including the interests of ethnic minority communities. With current low local voter turnout and democratic apathy there is a risk that people who already participate and have the skills, confidence or political motivation (in cases of extremism) to do so may monopolise neighbourhood councils and community calls for action as well as neighbourhood charters and community management of assets which are introduced in the White Paper but do not appear in the Bill.
25. There is a clear need for careful management by the local authority to mitigate any escalation of community tensions and to address any barriers to participation through consultation and careful planning. Community governance structures and the "Community Call for Action" must empower all communities, particularly people who are disadvantaged.
26. The CRE believe that the Government has a national monitoring function to ensure that ethnic minority communities benefit from these increased powers and localised democratic arrangements. This is an oversight in the REIA of the White Paper which initially sets out the arrangements for neighbourhood empowerment and governance.
27. The CRE will be looking to ensure that neighbourhood/community/village/parish councils are compliant with the general duty of the race equality duty to which they are subject. This should be explicitly stated in any guidance for such councils introducing their new community well-being powers.
PERFORMANCE FRAMEWORK AND TARGET-SETTING
28. Part 7, removes parish council and community councils as best value authorities, abolishes best value reviews and removes the right of the secretary of state to create best value performance indicators. In addition, the Bill, as in the White Paper sets out that there will be national targets in addition to local improvement targets.
29. The Bill consolidates the movement towards greater local accountability with a risk-based inspection framework and a reduced suite of national targets. There will be annual self-assessment by councils through reporting on the LAA, as set out in the White Paper.
30. A lighter touch inspection regime holds greater risks for all outcomes including equality. Whilst a reduced set of national targets have not yet been announced the CRE strongly believe that there must be a target or targets for equality covering all equality "strands", good race relations and community cohesion with a subset of performance indicators covering specific sectoral and service issues. We are seeking clarification that this will be the case. In addition we believe that equality and community cohesion should be mainstreamed as a cross-cutting outcome through all other targets and performance indicators, where relevant. This ethnic monitoring would involve collecting specific data on ethnic minority "performance" against the majority population to measure the level of inequality or to substantiate equality where it exists.
31. In order for real progress to be made by local authorities in achieving race equality and promoting community cohesion we believe that equality and community cohesion must constitute fundamental assess criteria for local authorities. They should be incorporated within the revised risk-based performance framework and included in the risk criteria to trigger external inspection.
32. The role of LAAs in the revised performance management framework is fundamentally important. They will be the mechanism through which local improvement targets are agreed as well as delivered alongside national targets. It is critical that local ethnic minority communities and voluntary and community groups are actively involved in the management of the Local Area Agreement, particularly in setting and revising local improvement targets. However, thus far many voluntary and community groups have found it difficult to influence key decisions. Whilst the Bill acknowledges that councils needs to involve the VCS it fails to mandate this, similar to the extended best value duty and the duty on partners to co-operate with the local authority.
33. The revised best value duty to secure participation of citizens is a positive step, however the requirement to involve people in addition to informing and consulting needs to be further developed. It is unclear at the moment how this will be achieved. The CRE welcomes and awaits further guidance from Government on the revised Best Value Duty and how it should lead to meaningful involvement moving beyond consultation. The provisions in the Bill for community governance and "Community Calls for Action" go some way of addressing this. However, there is also an opportunity for councils to engage people in their mainstream strategic activities for example, through the involvement of community representatives in LSPs and the management of LAAs.
34. The CRE believe that Local Strategic Partnerships should be separately listed under the Race Relations Act 1976 as amended to match this new area focus and mandate community involvement and equality of participation. This will also help to ensure that LAAs and specific targets actively promote race equality, eliminate unlawful racial discrimination and promote good race relations.
35. In revising the performance management framework for Local Government the Bill does not include provisions for the incorporation of service user views in inspection and improvement plans for local public services, which is set out in the White Paper. If and when guidance on this element of inspection is introduced it will be critical that all communities' views are heard including hard-to-reach communities in order to ensure that services are meeting diverse needs. In some cases this may require incorporating the views of under-represented communities who do not constitute a significant service-user base. This will be important in order to truly assess the accessibility of a service and to reveal any barriers or discrimination. Incorporating public views will require proactive and meaningful engagement with local communities. Where ethnic minority communities are small it is important that their views are taken seriously and not overlooked, using an ethnic minority boost in sampling is a legitimate technique, particularly where ethnic minorities are over-representative, for example, in social housing.
36. The Bill also fails to provide for greater reporting of performance and other service information locally as set out in the White Paper.
37. Councils must at all times comply with general and specific duties of the Race Relations Act 1976 as amended which includes assessing the impact of their functions on race equality and race relations. Compliance with the race equality duty must be an explicit outcome for all national targets and performance indicators. The provisions that the CRE seek within the revised performance aim to realise this objective.
REGULATION OF ETHICAL STANDARDS
38. Part 9 of the Bill reforms the regime relating to standards of conduct for local government. The proposals are aimed at devolving most decision-making on the conduct regime for local authority members to local authorities through local standards committees. There is a revised regulatory role for the Standards Board. The measures provide for local standards committees to make initial assessments of misconduct allegations and for review arrangements for those assessments which lead to no action being taken. The provisions also give powers for the Standards Board to suspend a standards committee's role in making initial assessments of allegations, and for the Board to issue guidance to standards committees and ethical standards officers.
39. The Bill also extends the application of the code of conduct which covers councillors' activities outside their functions of work, which the CRE strongly support. The Bill should also incorporate the public sector equality duties in extending the remit of responsibility for local authority members.
40. In addition, provision is made for decisions in respect of local authority posts subject to political restrictions to be undertaken by standards committees rather than, as now, by the Independent Adjudicator. The Bill also enables the Secretary of State to issue an order to allow the maximum pay of political assistants to be linked to a point on a relevant pay scale specified by the order.
41. A localised ethical standards regime carries with it risks in terms of effective monitoring of local councillors' conduct which is a concern for the CRE. The CRE welcome the appointment of an independent chair of the local standards committee and provisions for greater joint working with the local government ombudsman where relevant. The CRE also urge the Standards Board to effectively monitor periodic returns submitted by local authorities, particularly in light of cases relating to racial harassment or discrimination. Ethnic monitoring of all complainants should also be conducted with specific categories including Gypsies and Travellers.
42. The CRE have previously been dismayed by decisions taken by the Standards Board for England in relation to offensive comments regarding Gypsies and Travellers by a local authority member. In making their decision we feel that the Standards Board failed to effectively apply the code of conduct and to take into account the requirements of the Race Relations Act 1976 as amended. The Act requires local authorities and members to eliminate unlawful racial discrimination, promote equality of opportunity and to promote good race relations.
43. All parties and elected members must be held accountable by local standards committees and the Standards Board for England for upholding the Race Equality Duty, including outside their function of work. This includes ensuring that local authority members' public statements do not contribute to a worsening of community and race relations. This must constitute a fundamental bedrock of the revised code of conduct for local authority members in order to mandate action and provide alignment with existing race legislation.
PATIENT AND PUBLIC INVOLVEMENT IN HEALTH - LOCAL INVOLVEMENT NETWORKS
44. Part 11 of the Bill makes provision for the abolition of the Commission for Patient and Public Involvement in Health and Patients' Forums (CPPIH). In their place, it imposes a duty on local authorities to make contractual arrangements for the involvement of people in the commissioning, provision and scrutiny of health services and social services. The means put in place under the contracts for involving people in this way are referred to as "local involvement networks". Part 11 also imposes a new duty on each Primary Care Trust to report on consultation arrangements and the influence that the results of consultation have on commissioning decisions. The Bill also assures the right of local involvement networks to visit and inspect certain NHS premises.
45. The CRE welcome arrangements that will improve the transparency of decision-making, in the health service through local improvement networks (LINks) and a new duty upon PCTs detailed above. Thus far the Bill has stated that LINk membership will be open to any individual or organisation within the designated area with an interest in health and/or social care. Whilst we welcome a larger membership than patients' forums with increased flexibility in membership it is essential that there is a diversity of membership. Membership of LINks should be include people from different ethnic backgrounds, people of varying age, sexual orientation, gender, religion and including people with varying disability and health problems in order to be truly representative. Composition of membership should reflect that of the local authority area and more importantly, the population in receipt of social care and health services within this area.
46. This mandate will be critical in ensuring equality of participation and diversity that may not occur without a proactive recruitment approach by contracted agents, particularly in engaging with hard to reach groups such as Gypsies and Travellers and other ethnic minority groups.
47. By contracting out the establishment of these networks there is a risk that this may not happen. The RIA of the Bill sets out measures to ensure that LINks are representative. These include proposed guidelines that a LINk should make efforts to be representative of the whole community. Diversity and representation will also be one of the factors on which the LINk is performance managed. Whilst the CRE welcomes these measures their success will be dependent upon effective dissemination and enforcement. As CRE research in relation to NRF-funded LSPs has revealed (see paragraph 19), diversity criteria in performance management frameworks has not produced the results that we would like to see. The CRE further urges the Department of Health to ensure that need to promote race equality and to engage with all sections of the community including newly arrived communities and Gypsies and Travellers is written into the terms of reference for LINks and assessed through the performance management framework.
48. The CRE also support the Department of Health's plans to write diversity and representation criteria into model contracts for LINks. These are designed to assist local authorities in their tendering for a host organisation to host and establish the LINk. The RIA of the Bill goes further to state that ensuring that the LINk represents all sectors of its community will be one of contractual duties of the host organisation. If it fails to achieve this key outcome the local authority will have recourse to terminate the contract. The CRE will be looking to ensure that local authorities effectively enforce such contract standards through close contract management, including periodic returns on ethnicity monitoring of LINk members.
49. It is clear that for LINks to work effectively, like the short-lived patients' forums before them, they will need to be adequately resourced. The provisions of the Bill account for additional funds to procure a host organisation to set up LINks, however this money is not ring-fenced and as of yet does not specify what the money should be spent on. We are of the view that substantial resources must be provided to target and advertise LINk membership throughout the local authority area with specialist outreach work to engage ethnic minority communities and hard to reach groups. This will have significant cost implications which many patients forums were unable to account for.
50. Contractors or host organisations must also be bound and provided with adequate resources to train interested parties to have the adequate skills to participate effectively in what will be a largely technical and legalistic activity, once recruited. This must go beyond the specific training currently in development by the department of Heath with regards to inspection of NHS properties.
51. In addition, there is a need for incentives and recognition for volunteering to engage those who do not traditionally engage and are disadvantaged. This broad mix is integral to ensure that health services that are commissioned are culturally sensitive and responsive to diverse need.
52. In making informed decisions LINks need to embed a community development approach, a fundamental element of their work must be to bridge the gap between the community and local health service management. The Bill should ensure that existing local patient and carer groups as well as relevant community and voluntary organisations not involved in LINks are consulted by them. The RIA of the Bill acknowledges that LINks will need to make particular efforts to access the views of those who are socially unused to give their opinions or find it hard to do so.
53. The CRE supports provisions set out in the RIA of the Bill for the Department of Health to monitor data on the ethnic and diversity breakdown of LINk members and the work that they have done to access the views of the whole community. Furthermore we welcome commitment from the Department of Health to use this data to review arrangements. We would further urge the inclusion of Gypsy and Traveller categories.
Concluding Comments
54. We believe that there is a need in the Bill for commitment to and greater clarity about ethnic monitoring arrangements and capacity building for disadvantaged under-represented citizens. This is recurrent theme throughout and of fundamental importance.
55. Many of the measures set out in this white paper and the safeguards sought by the CRE above will require considerable additional resources to ensure effective, robust ethnic monitoring and the equal participation of all in fora such as community councils and LINks.
56. The CRE is concerned that without adequate resource allocation provided for under this Bill the benefits associated with devolving power to Local Government and communities will not be realised and will have an adverse impact upon race equality and community cohesion.
57. This is in the context of ambitious efficiency gains to be achieved by local authorities as part of the Comprehensive spending Review 2007 and set out in the White Paper.
January 2007 [1] National Census of Local Authority Councillors in England 2004, Improvement and Development Agency (IDeA), June 2005 |