We are deeply concerned that this Bill fails to preserve the public's existing rights to access council papers before decisions are taken.

Current access to information requirements

At present, most important council decisions have to be taken at meetings of the full council or its committees. These are subject to the Local Government (Access to Information) Act 1985.2  The 1985 Act requires meetings to be open to the public and media, although exempt information can be discussed and decided in private session. Where meetings are open, agendas, officers' reports and background papers must be publicly available at least three days in advance. However, some decisions are taken by officers under powers delegated to them by the Council, and these decisions are not subject to the 1985 Act.

The new structures

The Local Government Bill envisages that most decisions will not be taken by all-party committees of councillors but by:

• A mayor or leader
  

• Individual councillors given executive powers
  

• A cabinet of councillors
  

Officers are also likely to be given more delegated powers to take decisions.

Multi-party scrutiny committees will be able to review decisions after they have been taken.

What the Bill would mean for openness

Under the Bill:

• The full council and its committees will continue to meet in public, subject to current access to information requirements
  

• Cabinet bodies will not be required to meet in public, but must publish decisions after they have been taken
  

• Decisions of individual politicians (whether a mayor, leader or individual councillor) will not be subject to the 1985 Act, but a record of decisions must be published after they have been taken
  

• Scrutiny bodies will meet in public, subject to current access to information requirements

As a result, many decisions will no longer be taken in public, unless the authority opts to do so. Information about proposed decisions will not be available to members of the public until after the decision has been taken - unless the executive or individual decision makers actively choose to make them public beforehand.

Mayors and individual politicians will wield considerable power in their own right - as their decisions will not have to be ratified by the executive or council - which adds to concern about these arrangements. Vital decisions about housing, social services, education, the closure of facilities or the contracting out of services may be taken in far greater secrecy than at present.

Clause 21 of the Bill states that executives can meet either in public or in private and will decide on this issue themselves, subject to regulations under clause 21(9). These may vary between England (where they are made by the Secretary of State) and Wales (where the National Assembly for Wales will be responsible) suggesting that one set of authorities could be subject to more demanding requirements than the other. The full Council will not be able to require the executive to meet in public; the executive will be allowed to decide this for itself.

Various draft regulations under the bill have been issued for consultation, but those relating to openness, under clause 21, have not been published. So we do not know what the government intends to prescribe under:

• Clause 21(6) relating to the recording of 'prescribed decisions';
  

• Clause 21(8) relating to access committees of the executive, recording and availability of their decisions and related papers;
  

• Clause 21(9) which may limit the circumstances in which the executive can meet in private;
  

• Clause 21(10) which may apply (with or without modification) any of the provisions of the Local Government (Access to Information) Act 1985

Executives will be required to publish (a) a record of their decisions, and of those delegated to individual executive members, (b) reasons for decisions and (c) background papers. These will have to be made publicly available 'as soon as is practicable' after the decision.

The government's draft guidance advises executives to consult widely about important decisions. However, the question of whether consultation takes place at all, its extent, and who is consulted will generally be left to the discretion of each authority. The council can introduce provisions to 'call-in' and re-examine executive decisions before they are implemented; but they will not be required to do this.

In permitting executives to decide for themselves whether to meet in public, the Bill removes the existing duties on local authorities to take decisions in public, and the public's existing right to see papers relating to these decisions before they are taken. These were largely created by two private members' Bills: Margaret Thatcher's Public Bodies (Admission to Meetings) Act 1960, and Robin Squire's Local Government (Access to Information) Act 1985.

In justifying these changes, the government argues that "Under the committee system, papers presented to that committee must be made available three days in advance, but that is no substitute for proper involvement of local people in the policymaking...Access to papers and minutes does not of itself mean that local people can participate in decision making, and know what is being decided and why."3  While advance access to papers may not guarantee public involvement, removing these rights can only undermine it.

The importance of the rights which are about to be weakened is highlighted by a Policy Studies Institute report on the 1985 Act published by the government in 1995. It concluded:

"[Council] Meetings are valued by established groups and associations, by groups campaigning or lobbying on a specific issue, and by individuals pursuing their own particular 'cases' or issues of personal interest. They are valued because they give all these groups the opportunity to make representations before the meeting, to make their interest known by being present at the meeting, and to observe the debate and decisions that take place. These are all valid uses of the Act, which do reinforce the accountability of local government...Access to papers is also important, but this is generally associated with attendance at the associated meetings."4

The Freedom of Information Bill

The much criticised Freedom of Information Bill, would apply to local authorities, but seems unlikely to compensate for the loss of existing rights. For example, information could be withheld if in the authority's "reasonable opinion" disclosure would be likely to "inhibit the free and frank provision of advice", or "the free and frank exchange of views for the purposes of deliberation", or "prejudice the effective conduct of public affairs". Because the authority's opinion is given legal weight, the bill's Information Commissioner will not be able to question most decisions to withhold information, even if they are clearly wrong.

In particular under the FOI legislation, information has to be requested rather than being automatically published, and will only have to be available within 20 working days, so long as the authority does not claim the information sought as exempt. In any case this Bill will not give the media and public any right to advance notice of imminent decisions or the background papers and officer advice.

Changes which should be made to the Local Government Bill

The public should know what decisions are about to be taken, and have access to papers relating to that decision in advance. This would also strengthen the rights of councillors who are not members of the executive. It would help to build public confidence in new structures.

The specific changes needed may vary depending on the different structures that may be adopted.

Meetings of Executives
Local authorities may decide to introduce executives at which decisions are taken by a 'cabinet' of councillors. Their meetings should be made subject to the Local Government (Access to Information) Act 1985. That is, they would have to meet in public, unless particular types of exempt information are involved. This would maintain the current levels of openness, including publication of agendas, officers' reports and recommendations and background papers. It may not be possible to prevent members of the executive holding discussions in private (with or without officials present), but the formal decision-making should be subject to the same level of pre-decisional disclosure as at present.

This requirement should appear on the face of the Act, and not be left to a regulations which may apply the provisions of the 1985 Act 'with or without modifications' [clause 21(10)]. Since the 1985 Act itself contains a regulation making power allowing the Secretary of State to vary the scope of the exempt information, it is hard to see how the flexibility required for any possible future changes would not be maintained.

Papers of Executives
If the meetings of executives themselves are not made subject to the 1985 Act, the existing rights to see papers before decisions are reached should be maintained. This would be in line with the recommendations of the Joint Commons and Lords Committee which examined the draft version of the Bill:

"We recommend that the agenda of the executive be published in advance, together with all papers relating to items which are on the agenda for decision, and that this should be made clear in regulations."5

The joint committee came to this conclusion after hearing evidence from the local government ombudsman for Wales, Mr Elwyn Moseley. He told the committee:

"One of the features of the current system which is fairly unique is that the public have access to agendas and reports to committees in advance of a meeting and certainly, in so far as openness is an important contribution towards good conduct, then I think that in so far as papers for meetings of the executive will not be available in advance, that will be a diminution of the current rules on openness."6

Decisions not involving meetings
Mayors are likely to be responsible for many decisions, which they will effectively take on their own. Individual 'cabinet members' may also be given similar powers, and officials will be responsible for taking a wider range of decisions. As these decisions will not be taken at 'meetings' the 1985 Act cannot directly apply. However the Bill should be amended so that the public is given equivalent rights to see papers before decisions. That is, reports, recommendations and background papers should be open to the public unless they contain exempt information.

The Bill should also be amended to require a short period of delay (a week has been suggested) before executive decisions can be implemented, with powers for non-executive councillors or a scrutiny committee to 'call in' and review the decision. The power for scrutiny committees to 'call in' decisions would be in line with recommendations of the Joint Committee that reported on the draft Bill.7  This 'call-in' provision would help to keep decisions within the strategic frameworks decided by the full council, and becomes especially relevant if executive decisions are closed to the public.

The case for changes to the Bill

These proposals would do no more than maintain current standards of openness in local government. As well as protecting the public's existing rights, they would help build confidence in the new structures and contribute to their effectiveness. The government wants the Bill to improve the efficiency of local authority decision-making. Preserving existing standards of openness is entirely compatible with this aim.

Open decision-making is better decision-making.
The quality of decisions will be improved if officials and politicians know they will be questioned on the basis of the full facts and subject to public and media scrutiny. Openness before decisions are taken will encourage clearer and more rigorous advice to councillors. Indeed, as the government's own draft guidance states, "decision-making will be more effective if it has broad agreement beforehand than if it is constantly challenged afterwards. If executives are not getting their decisions right from the outset, this will lead to inefficient decision-making and subsequent unconstructive challenges."8  It is also in line with the Modernising Government programme's commitment to a more open policy formulation process, with greater involvement of external experts and outside bodies. The Internet has great potential to make more widely available agendas and papers published in advance of decisions.

The current openness legislation has made a significant impact on local government. This is supported by an evaluation of the 1985 Act published by the Department of the Environment, which concluded that it had been "effective", and had "proved to be very important in establishing minimum standards, ensuring consistency and even in challenging attitudes previously in favour of secrecy within authorities."9  The Bill cannot be allowed to reverse such progress.

Greater secrecy will undermine public confidence in the new executives.
The new executive structures will be undermined in the eyes of the public and of local media if they are accompanied by a reduction in openness. Local newspapers are already reporting an increase in secrecy by some authorities which have adopted the new arrangements on a trial basis.

Openness will help protect against corruption.
The Bill includes measures to improve ethical standards. But if decisions are taken in private, by executives and individual politicians, there will be less scrutiny of whether councillors' private and financial interests are properly declared, and less oversight of the award of contracts and of appointments to outside bodies.

Removing the requirement to publish agendas and papers in advance of decisions could encourage even more informal decision-making. There will be a reduction in opportunities for staff to provide legal advice to politicians, and it will be harder for the monitoring officer to fulfil his/her responsibilities to ensure decision-making is legal and ethical.

'Transparency' is not openness.
Government ministers frequently talk about the need for an increase in 'transparency'. What they mean is that the committee system obscures the reality of how political power is exercised in many councils: by the majority party, or by a small leadership group of that party, acting outside the formal committee structures. Giving executive power to particular politicians is intended to clarify who has decision-making responsibility. However, clarity of responsibility after the event is no substitute for openness prior to decisions being taken, and cannot be a substitute for an open and responsive approach to decision-making, which allows the community to discuss and influence decisions before they are taken.

The government argues that the new scrutiny committees will themselves generate openness. But they will only be effective if they receive informed input from local residents and organisations, especially in those areas where the council's new scrutiny bodies will be dominated by the council's majority party.

The executive will no doubt choose to discuss issues in private, but formal decision-making should be in public. This is one of the options the Bill allows authorities to adopt. They should be required to do so.

The present level of openness is practical.
Local government has operated the current access to information legislation for fifteen years without evidence that it is impractical. The 1995 Policy Studies Institute report for the Department of the Environment concluded that:

Effective local government will not be served by abandoning these gains.

April 2000