Memorandum by the London Borough of Lewisham
Attached is a report agreed at Lewisham Council's
Policy and Resources Committee in May this year. It has already
been sent to the DETR as a response to the consultation, but we
would like it to be included as evidence to the Joint Committee
Lewisham Council has responded positively to
modernising local government and local democracy. The Council
has already carried out extensive consultation on the best way
to govern Lewisham. It has decided to take forward the model of
a directly elected mayor as soon as it becomes possible to do
so. This was agreed at a full Council meeting in January with
only one vote against.
I understand that members of the Lewisham Citizens
Panel who were involved in our discussions on the best way to
govern Lewisham are giving evidence to your Select Committee this
week. The Citizens Panel deliberations fed into our own select
committee of councillors last year. I believe copies of the resulting
reportgoverning Lewishamare being made available
to members of your committee, but I attach a copy for ease of
Prior to legislation, we are moving as far as
possible towards a directly elected mayor model, and have abolished
committees, set up an executive including an executive mayor,
and assembly arrangements with six select/scrutiny committees.
The Council does not however, believe that new
structures hold all the answers to achieving greater democratic
engagement. It is the Council's policy to lobby the Government
for a more proportional system of election at local level to accompany
any constitutional change in Lewisham. And in addition the Council
is committed to innovative ways to consult and involve local people
and stakeholders in decision-making. We have taken great care
to ensure maximum transparency in our new arrangements, including
holding meetings of the new executive in public.
To bring to the attention of the Committee the
contents of the Local Government (Organisations and Standards)
Bill, (the draft Bill), and to enable the Council to submit comments
to the Government and to the Local Government Association in accordance
with the consultation timetable.
2. POLICY CONTEXT
The Council is committed to the modernisation
of its political governance arrangements. A Select Committee report
considered by the Council in January this year agreed to hold
a referendum as soon as possible on whether to proceed to an elected
mayor for Lewisham. It also agreed to move so far as possible
within existing law to a modernised style of political governance
with effect from May 1999.
To note the contents of the consultation paper
"Local LeadershipLocal Choice" and in particular
the contents of the Bill; and to authorise the Chief Executive
to make representations to the Government and to the Local Government
Association in accordance with the contents of this report.
4.1 In July 1998, the Government published
a White Paper "Modern Local GovernmentIn Touch with
the People" which sets out its intention to modernise the
political management of, and to introduce a new ethical framework
for, local government.
4.2 In March 1999, the government issued
a draft Bill under cover of the document "Local LeadershipLocal
Choice", which largely reflects the proposals set out in
the earlier White Paper in so far as they related to political
governance and ethics. It is clear that the changes will represent
a fundamental change to the way local government goes about its
5. THE MAIN
5.1 The draft Bill is in two parts, the
first dealing with governance and the second with ethics.
5.2 The Local Authority Executive
The draft Bill provides that in future decisions
of the Council may be delegated to "local authority executives"
which must consist of:
a directly elected mayor and at least
two other elected members appointed by the mayor (elected mayor
an executive leader and at least
two other members of the Council appointed either by the mayor
or the authority (executive leader model): or
an elected mayor and a council manager
appointed by the authority (council manager model).
The Secretary of State may add to these three
models by regulation.
5.3 Constitution of the executive
5.3.1 The draft Bill provides that the Chairman
and Vice-Chairman of the Council may not be members of the local
authority executive (presumably to maintain an element of impartiality
in the conduct of Council meetings).
5.3.2 The number on the Executive may not
be more than 10 or 15 per cent of the total membership of the
Council, whichever is the smaller. Calculation of the 15 per cent
does not include the mayor (though the mayor does appear to be
included in the figure of 10). Subject to these limits, the Mayor
decides on the number in the cabinet and appoints an executive
member as his deputy.
5.3.3 Local authority executives are not
required to comply with the political balance provisions of the
Local Government and Housing Act 1989 and therefore may be single
party. (Clause 9) The executive will be able to appoint committees
which need not be politically balanced.
5.4 Executive functions
5.4.1 The draft Bill provides for the Secretary
of State to have power to set out in regulation those functions
which must be performed by the executive, and those which may
and may not be performed by it (Clause 3). Though the Bill does
not state which functions will fall into which category, the narrative
which accompanies it suggests that planning (probably development
and control) and licensing functions will be prohibited to the
Executive when the regulations are made.
5.5 Delegations by Executive
It is proposed that delegations should be as
follows in each of the three models:
Directly elected mayorthe
mayor may discharge functions alone, or delegate to the executive,
a single member of it, a committee of the executive or an officer.
Executive leader modeldelegations
could be to the Leader or could be discharged as the Council sees
fit and sets out in its executive arrangements.
Council manager modelexecutive
functions may be performed either by the executive (ie, the mayor
and Council manager together) the Council manger or a nominated
5.6 Overview and scrutiny (Clause 7)
The Council must have at least one overview
and scrutiny committee to scrutinise the exercise of executive
functions, and to make reports and recommendations to the authority
or its executive on the discharge of executive and connected functions.
Neither the Chairman, nor the Vice-Chairman, nor any member of
the Executive may sit on an overview and scrutiny committee. The
overview and scrutiny committees may compel attendance by executive
members and officers. If so compelled, officers and members are
under a statutory duty to attend. The Secretary of State retains
power to make regulations about the operation of overview and
5.7. Consultation with local community
5.7.1 The draft Bill proposes a new statutory
duty for local authorities to consult with electors on their proposed
executive structures, and to send a copy of the proposals to the
Secretary State. If the authority proposes an elected mayor then
it must first hold a referendum and the results will be binding.
If the result is negative then the Council may prepare alternative
proposals and consult, but only one referendum may be held every
5.7.2 By clause 14 of the draft Bill, the
Secretary of State may make regulations requiring an authority
to hold a referendum on whether there should be an elected mayor
if the authority receives a petition signed by 5 per cent of local
electors. The Secretary of State retains power to change the 5
per cent to another figure, and to make regulations to allow himself
to require a local authority to hold a referendum.
5.8 Adoption of executive arrangements
Executive arrangements and amendments to them
once in force, may only be adopted by full resolution of the Council.
Once adopted the Council must operate the arrangements unless
they are amended in accordance with procedures referred to in
the draft Bill.
5.9 Provisions relating to the mayor
The proposed term of office is four years. Mayors
will be elected by the supplementary vote system.
5.10 Powers of the Secretary of State
The Bill has numerous references to the powers
of the Secretary of State to make regulations. These include,
for example, regulations relating to the conduct of mayoral elections;
as well as the question put at, publicity relating to, and the
conduct of referenda. The Secretary of State may also issue guidance
on the Council's proposals for executive arrangements, implementation
timetables, the availability of public information and the operation
of overview and scrutiny committees. The Council must have regard
to such guidance.
5.11 Members Code of Conduct
5.11.1 The Secretary of State may specify
the principles governing the conduct of local councillors. With
the assistance of the local authority associations, the Secretary
of State may issue a model code of conduct, which must be consistent
with the principles, and may include both mandatory and optional
5.11.2 Once the model code has been issued,
Councils must adopt a Members code of conduct [within six months]
(or review their existing code) to comply with the model. It must
incorporate the mandatory elements and may include the optional
and other elements.
5.11.3 Members must undertake to observe
the code within two months of its adoption or lose office.
5.11.4 The Council must publish the code
of conduct and adopt it by formal resolution.
5.12 The Standards Committee
5.12.1 Every Council will have to establish
a Standards Committee to promote and maintain high standards of
conduct and to assist members in the observance of the code. It
will advise on the adoption and revision of the code, monitor
its operation and arrange training for members on it. It will
consider lesser allegations of breach of the code referred back
to it by the independent Standards Board (see later).
5.12.2 A Standards Committee must include
at least two elected members of the Council, and at least one
non-member. It may not include more than one executive member.
The Mayor or Executive Leader may not sit on the Standards Committee.
Apart from these limitations the constitution of the Standards
committee and its term of office is for the Council to decide.
Non-Councillors who sit on the Standards committee may vote.
5.12.3 The Secretary of State retains regulatory
powers and the Standards Board may issue guidance.
5.13 The Standards Board
5.13.1 The Standards Board will be an independent
body appointed by the Secretary of State to deal with disciplining
elected (or former elected) members. It will consist of Ethical
Standards Officers and ordinary members.
5.13.2 Ethical Standards Officers (ESOs)
will investigate allegations of breach of the code. Only allegations
in writing will be considered.
5.13.3 The ESO may:
Find that there is no evidence of
Find that no action is necessary.
Refer the matter back to the Standards
Refer the matter to an Adjudication
5.13.4 ESOs will have the same powers as
the High Court in relation to the attendance and examination of
witnesses, and the requisitioning of documents. Anyone who fails
to comply with the requirements of an ESO investigation commits
a criminal offence subject to a daily penalty of £20 until
5.13.5 There are to be natural justice safeguards
relating to an ESO enquiry, including the right to representation.
5.13.6 The ESO has power to produce an interim
report and conclude that suspension of the member from office
is appropriate. The ESO may then require an authority's standards
committee to suspend the member for up to six months while the
investigation is ongoing. An ESO may issue several such notices.
Appeal against suspension lies to the High Court.
5.13.7 The draft Bill provides for Adjudication
Panels to be set up. They will conduct adjudication by Case Panels
of at least three members. The Panel may suspend the member from
membership of the authority, its committees or subcommittees,
or disqualify the member for up to five years. If suspension or
disqualification is not deemed appropriate, the Panel will inform
the Standards Committee, specifying the nature of the breach.
Appeal lies to the High Court.
5.14 Employee Code of Conduct
The Secretary of State is to issue a code of
conduct for employees, following consultation, and the code will
be incorporated into the terms and conditions of employment of
6. ANALYSIS AND
6.1 A fundamental change
The draft bill represents a fundamental change
in the way in which local government goes about its business.
Much of what is contained in the draft Bill, particularly in relation
to the political management of the authority was trailed in the
July consultation paper. The draft Bill by giving expression to
the modernisation agenda, is to be welcomed as an opportunity
to overhaul local governance and making it more relevant to local
people. New structures should enable local people to know who
is responsible for making the decisions which affect their everyday
6.2 Enabling legislation
Though the draft Bill sets out three models
for local governance, and the ethical framework, a great deal
of the detail of the legislation remains to be fleshed out by
regulation. Without that regulation, the law will be unworkable.
There is little in the Bill about the relationship between the
constituent parts of the authority, (the executive and the overview
and scrutiny committees, and the Council itself) or their respective
roles. Though the narrative which accompanies the bill does set
out what the Government's view is about these functions and relationships,
it is not given in the draft Bill in any detail.
There is nothing in the draft Bill which would
require the overview and scrutiny committees nor the Executive
to hold its meetings in public, subject to the existing safeguards
contained in prevailing access to information provisions. Lewisham's
position has been to endorse that all meetings should be held
in public subject to these safeguards and would urge an amendment
to the draft Bill to this effect, or that regulations be put in
place as soon as possible to achieve the same purpose. It is only
by such openness that local accountability and transparency can
6.4 Record of decisions
Though there is reference in the narrative accompanying
the draft Bill to the requirement that records be kept of decisions
taken, there is no such reference in the draft bill. The draft
Bill proposes that individual Executive members might have decision
making powers delegated to them. A requirement for decisions tobe
taken on a full consideration of all relevant information, and
for a record of the decision and the basis on which it is made
be kept, is therefore essential, as would be current practice
now. Without such practice it is exceedingly difficult for the
council to defend its decisions (eg a school closure) to those
affected by it, the public at large, its Auditor, or in the most
extreme cases to a Court in the event of challenge.
6.5 Officer advice
The Council has always taken the view that officer
advice should be open, impartial and objective. This is a line
which is endorsed in the Council's Select Committee report on
the political management of Lewisham. The draft Bill however does
not embody such a proposal, but rather remains silent. Given the
separation of executive and scrutiny functions which the Bill
will bring about, and especially with single party closed meetings
of the Executive becoming a legal possibility, the need for such
advice becomes ever more pressing. The Council therefore is recommended
to ask the Government to amend the draft Bill accordingly, or
to ensure that regulations are introduced to this effect. Such
a provision would be entirely consistent with the intention to
promote the highest standards of ethics in local government.
6.6 Powers of overview and scrutiny committees
These are tied to the Council's functions. Where
the Council with Government encouragement is seeking to work across
the public sector in partnership with others, a more widely drawn
power which is not limited to Council functions, but perhaps related
to matters of interest to local inhabitants might be more facilitative.
6.7 Numbers on the Executive
These are tightly defined by the draft Bill.
In Lewisham the maximum number on the Executive will be eight.
This is less than our interim arrangements propose. It would be
possible for the draft Bill to be amended to give to local authorities
a greater degree of discretion in this area, and there appears
to be little justification for centrally determined limits. Instead
local authorities should be able to choose in accordance with
Broadly the provisions follow the line taken
in the White Paper in July. In particular, the principles which
the Secretary of State is likely to specify for inclusion in codes
of conduct are likely to be consistent with the principles set
out by Nolan III and as such are to be welcomed.
6.9 Constitution of the Standards Committee
The draft Bill lays down minimum requirements
for the membership of Standards Committees. (see para 5.12.2 above).
However by being so prescriptive, the Government precludes some
constitutions which have worked well elsewhere. For example, if
the Bill is enacted as currently proposed, it would not be possible
to establish a Standards Committee made up entirely of non-members.
Some may take the view that such a constitution would be likely
to bring a high degree of impartiality to the work of a Standards
committee and may inspire confidence in the Standards Board that
matters referred back to it might be dealt with objectively and
6.10 Potential bureaucracy and expense
Perhaps the most significant drawback of the
proposals is that the workings of the Standard Board, its ESOs
and Adjudication Panels are likely to be very slow, cumbersome
and unnecessarily expensive. With rights of representation and
appeal to the High Court, it is possible, not to say likely, that
if cases are investigated in this arena then they will not be
brought to a conclusion swiftly. Cases going on appeal may drag
on for months, perhaps years. A lower key but equally effective
way of dealing with allegations of breach of code might be to
allow local authorities to establish external Standards Committees,
which could deal with all but the most serious cases which the
Regional Standards Board might keep to itself.
6.11 The role of the statutory officers
The Act does not say what will be the relationship
between the Standards Board and the Monitoring Officer/Director
of Finance (or District Auditor). Clearly there will be occasions
when (for example) the Monitoring Officer will need to be involved
to satisfy himself that he has fulfilled his own personal legal
responsibilities under the Local Government and Housing Act 1989.
These issues need to be revisited and the matter clarified as
soon as possible.
7.1 There is much in the draft Bill to be
welcomed. It will give legal expression to a route to modernisation
which the Council is strongly committed to. However, much of the
detail will depend on the detail of regulation, which is yet to
7.2 Lewisham has seized the initiative with
interim arrangements which are consistent with the law now, but
whether they will need amendment under the new law depends on
the final drafting of the Bill. For instance, if it remains as
drafted then it is clear that the membership of the Executive
will need to be changed, and it will not be possible for a person
who sits on the Executive to be the Chairman of the Council.
7.3 There may need to be further changes
in the light of any regulations made by the Secretary of State.
Further developments will be reported to the Council at the earliest
8. OFFICER RECOMMENDATION
The committee is asked to consider the contents
of the report and to decide on the representations to be made
in the Government's consultation process which closes on 21 May
There are non arising directly from this report.
10. LEGAL IMPLICATIONS
These are contained in the body of the report.
There are no specific implications.
12. CRIME AND
There are no specific implications.
30 June 1999