|The Campaign for Freedom of Information|
Local Government Bill
Briefing for Second Reading, 11 April 2000
We are deeply concerned that this Bill fails to preserve the public's existing rights to access council papers before decisions are taken.
Existing rights to local authority information largely apply only where meetings are open to the public. Where meetings are closed, the public's rights to information are minimal. But the new executives set up under the Bill will be allowed to decide to meet in secret. Where this happens, people will lose their right to know what decisions are about to be taken, and what reports and advice officials have given in advance of the decision. These rights are crucial for public involvement in local democracy. It is unacceptable that we should be going backwards on this issue.
The Bill requires executives to publish papers after decisions have been taken, but this is not enough. Nor will the heavily criticised Freedom of Information Bill help. It is too weak to compensate for any loss of existing rights.
The Bill continues to fall short of the aspirational statements made in the government's own white paper, which declared that "Opaque and unclear decision taking weakens the links between local people and their democratically elected representatives."1
This briefing sets out:
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:
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:
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:
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
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
The joint committee came to this conclusion after hearing evidence from the local government ombudsman for Wales, Mr Elwyn Moseley. He told the committee:
Decisions not involving meetings
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 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.
Openness will help protect against corruption.
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.
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.
Effective local government will not be served by abandoning these gains.
The Local Government Bill, the Hansard of the second reading debate, and the report of the Joint Committee on the Draft Local Government (Organisation and Standards) Bill are available from the Stationery Office or the Houses of Parliament website: www.parliament.uk.
The draft regulations and guidance, and other information on the Local Government Bill are available from the Department of Environment, Transport and the Regions.
|Read the Campaign's briefings on the Freedom of Information proposals.|
|Freedom of Information & Open Government.|