3 August 2000
Definition of ‘Key Decisions’
The draft regulations envisage local authorities deciding for themselves the level of expenditure or contract value which will make the determination of a matter a ‘key decision’. In our view this will lead to substantial and arbitrary variations between authorities as to what a ‘key decision’ is. Since much relating to openness hangs on a matter being defined as a ‘key decision’ authorities which are either less keen on having matters scrutinised, or are loathe to improve the efficiency with which they manage information, will deliberately choose high threshold figures.
It is clear from the responses to the consultation on the second version of the draft guidance that many authorities seek either much wider discretion or a much narrower definition of ‘key decision’. Some apparently believe they should decide for themselves how open they will be, and in our view are missing the point of the exercise. However, others have made clear that what concerns them is the (perceived) bureaucracy of forward plans, and have sought to mitigate this by suggesting that the more subjective elements of the proposed definition (‘material’ or ‘significant’ effect, ‘controversial’) are removed so that whether something is a ‘key decision’ hangs entirely on a financial limit they themselves determine.
We support the retention of 15(1)(a) in the definition of a ‘key decision’. However, we believe that the level of expenditure and contract value should be specified in the regulations by the government itself, with a mechanism for periodic uprating in line with inflation and/or experience of the operation of the new arrangements.
While this may run counter to local determination of what constitutes a ‘key decision’ we believe that the level of openness in authorities is a matter for national standards, not local discretion.
Part VA of the Local Government Act 1972 already creates too many opportunities for unwelcome differences in local authority openness (which is why we are pleased the government has agreed to review the exemptions in Schedule 12A) and these regulations should seek to minimise variations in citizens’ right to know, not exacerbate them. The argument advanced by some authorities that local accountability of decision-making will ensure that high levels of openness will be achieved does not hold water: it is clear from many councils’ responses to the consultation that an institutional interest in minimising the work required by a forward plan will lead to a cosy agreement between officers and members of the majority group that the level of expenditure and contract value should be set at a high level. If this happens it is likely that many more disputes as to whether a decision is ‘key’ or not will rest on the issue of whether a decision has a material effect outside the authority, a significant effect on the authority itself, or is controversial. This will in turn either bog down the overview and scrutiny committees with party political disputes – preventing them from doing their real job – or lead to an increased number of legal challenges.
The solution to this problem is for the government to set the value in the regulations at a low level. Alternatively, the regulations could permit authorities to set the level within a relatively narrow band. This has the attraction of a minimum level across the country with local choice (and accountability) for each council when deciding for itself what value to choose within that band.
The reference to ‘controversial’ in 15(1)(b)(ii) should not only apply in relation to an expenditure or savings decision. Whether a decision is controversial or not should become a free-standing test of what is a key decision. For example, a decision to send a letter of support to an allegedly terrorist organisation may be just as controversial as sending it £100.
We also believe that it would be helpful if two further criteria were added to the definition of what constitutes a key decision. The first was suggested by Professor John Stewart and is that the disposal of council property with a value above a set level should also be a key decision. It does not seem that regulation 15(2)(c) – the incurring of a contractual obligation – would cover this issue.
In addition, while the Council will be responsible for setting the broad policy framework of an authority, many important issues will not be caught at this level and will be decided by the executive. Our second suggestion is therefore that the definition should explicitly state that the creation of new policies or departures from existing council policy or established practice should also be defined as constituting a key decision. This would help reduce the scope for disagreements over the effects or controversial nature of a decision.
A further issue of importance is an unnecessary degree of subjectivity in the drafting of regulation 15. This states that only executive decisions which “in the opinion of the decision-taker” are likely to meet the specified criteria will be subject to the requirements for advance publicity on the forward plan. The inclusion of the decision-taker’s ‘opinion’ in the definition moves the criteria from an objective to a subjective assessment. This will undoubtedly compound the potential for disagreements, and means that any internal challenge by a scrutiny committee, or external legal challenge, to the decision-taker’s determination of whether a decision is ‘key’ or not will get bogged down in arguments over the reasonableness of the decision-taker’s ‘opinion’ rather than examining the correctness of the determination on its merits. This cannot be desirable. The words “in the opinion of the decision-taker” should be deleted from regulation 15(1).
Finally, the definition of “key decision” in regulation 2 needs to be amended by an explicit reference to a decision which meets the criteria laid down in regulation 15(1). Without this change it is difficult to see how the interpretation clause will properly aid an understanding of the regulations.
Some respondents to the consultation expressed a fear that the duty to create and maintain a forward plan of forthcoming key decisions would be a large and unnecessary burden, and that a broad definition of ‘key decisions’ would require too many items to be included for the plan to be of any practical use to anybody. A broad definition of a key decision would require the listing of many forthcoming decisions which are important to people in one part of an authority, but are less significant to others. We can see that not many people would want to wade through pages of information about decisions which do not affect them and their neighbourhood directly, so separating out decisions which only affect a small area into locally focussed documents will help to clarify what is ‘key’ to an area and play a part in stimulating the consultation and involvement process. We believe that councils should stop viewing forward plans as a threat and instead see them as an opportunity for modernising and improving the flow of information within and outside the authority. To meet the concern that a single forward plan may be unwieldy, we think councils should be given the flexibility to have more than one forward plan should they so choose. This could either be by function, i.e. a housing forward plan, a social services forward plan etc, or by geographical area. The guidance could indicate to councils that while decisions which only affect one ward (or other area subdivision of an authority) could be listed on a separate plan for that area, those which affect more than one area, or which are ‘cross-cutting’ issues should be listed in the authority-wide forward plan. Separate lists for different functions are likely to be less attractive given recent encouragement for ‘joined-up’ decision making, but they may still have a part to play.
Ward or area forward plans would, we believe, stimulate greater public participation and accountability by bringing decision taking closer to the people affected.
Exempt information and the Forward Plan
We are concerned at the drafting of regulation 18, which provides that the obligations of regulation 15 (preventing the taking of non-urgent key decisions without prior publicity) do not have to be satisfied if the matter would involve exempt information. This would allow items to be left off the forward plan altogether if any exempt information is involved. The effect is that councillors and the public would only become aware of such key decisions after the decision has been taken. This would undermine all the progress made in our discussions on the Act and draft regulations and we hope what we take to be an oversight will be corrected. All that is necessary is for regulation 18 to specify that no exempt information needs to be included in the forward plan, but that all key decisions should be listed.
Details of claim for exemption
For those items which may be confidential or exempt the forward plan should state, as soon as the proper officer is able to come to view on the matter, that this is likely to be the case, and the description of the item on the forward plan should specify precisely which paragraph of Part I of Schedule 12A the officer believes applies.
Challenges to claims for exemption
The scrutiny committee (not just the chair, who could belong to the majority group on the council) should explicitly be afforded the right to examine and overturn the claim for exemption prior to the decision being taken. This should provide a balancing mechanism to what would otherwise place too much power regarding pre-decisional availability of information in the hands of an individual officer or executive member.
Declaration of interests
We suggest that any interests which would have to be declared in council committees under the existing structures should be listed as an additional category of information declared on the forward plan for each key decision (regulation 21(2)). The Local Government Information Unit has expressed concern that the movement of decision-taking from open meetings to individuals removes the safeguard of councillors declaring their interests and increases fears regarding probity and ethical standards. We share this concern. While cabinet meetings discussing key decisions will be open to the public – and will presumably maintain existing practice for declaring pecuniary and non-pecuniary interests – no such facility will exist for decisions taken by individuals.
Regulation 21(2) should also be amended to ensure that details of how to contact the decision-taker (not just their name) are also listed on the forward plan. This may be different from the obligation under regulation 19(1)(f) from the address from which copies of documents may be obtained.
Updating the Forward Plan
We also suggest that the guidance accompanying the regulations makes clear that the forward plan list of documents relating to a forthcoming decision should be updated each time the plan is revised. Draft regulation 21(2)(g) presently makes no provision for this. Documents relating to a decision are likely to be in draft when a decision is three months off, but more will be finalised as the date for the decision approaches.
Any officer reports should also list the background papers relied on when drawing up the report. We suggest that this duty should go further than the recent amendment to the 1972 Act by requiring officers to list details of published works they have relied on. They should not however be under the same duty to supply copies of these published works as they would be were the background papers unpublished council documents. This can be achieved by amending the definition of “background papers” in regulation 2.
Access to papers before a decision
Regulation 10 appears to contain two shortcomings which may be drafting errors, but which we are drawing to your attention to ensure they are rectified.
First, regulation 10(2)(b) does not require reports to be publicly available three clear days before the decision is taken. It is not clear if the report must be made public at all. The decision taker would be required to leave three clear days between receiving the report and taking the decision – but is not required to make the report public at that time. The report would have to be provided to the chair of the scrutiny committee ‘as soon as reasonably practicable’. The person who prepared the report would have to ensure that ‘sufficient copies are available to meet every request for a copy of it’, but this does not amount to a duty to respond to such requests. There is no reference at all to when it should be made public.
Second, decisions could apparently be taken on the basis of draft reports, but the draft report would not have to be made public before the decision at all. This could allow authorities to circumvent the advance disclosure requirements by circulating draft reports, which are never quite finalised – and therefore not subject to advance disclosure. The regulations should specify that no key decisions can be taken in the absence of a written report in final form publicly available three days in advance (subject to urgency and exempt item considerations).
We noted from the response to the consultation on the draft guidance that many authorities felt that criminalising a failure to record decisions and the reasons for them was too harsh. We disagree. Weak sanctions for failing to make available information or adequately record key decisions will discourage a rigorous approach to record keeping and a proper consideration of the rights of non-executive councillors and the public. However, we suggest that draft regulation 14(2) be altered by inserting a reference to ‘without reasonable excuse’. This would bring it into line with the offence in 14(3) if members of the executive fail to record a decision.
Regulation 10 also fails to deal with the paradox at the heart of the new arrangements: namely that while taking decisions for political considerations is legitimised, the regulations also permit those political reasons to be excluded from the record. This is compounded by the duty placed on the proper officer in 10(4) to produce a substitute record if they feel the documents produced by the decision-taker under 10(3) do not ‘fairly and accurately’ reflect the reasons for the decision. What happens when the decision-taker produces a fair and accurate record of the reasons for a decision, but then by excising the advice of the political adviser reduces the record to a meaningless state whereby the proper officer is compelled to produce an alternative record? It would appear that the proper officer would not be able to a true record either since 10(9) does not authorise the disclosure of the advice from a political adviser. The regulations should be amended to require the disclosure of the political advice in those circumstances where the proper officer believes that to be necessary for the record under 10(3) to fairly and accurately reflect the reasons for the decision.
We are further concerned that 10(4)(b) requires the destruction of the original record of the decision, reasons and alternative options. This will mean that evidence will be lost to any ombudsman or audit investigation of a decision. The proper officer may destroy a record of the reasons for a decision because they believe the recorded reasons are ultra vires. In such cases the original record should be preserved and the proper officer should report their concerns to the monitoring officer (whose role in these cases should also be spelt out in the guidance). It may be appropriate for the monitoring officer to report their concerns to the overview and scrutiny committee if, after consulting with the decision taker, that individual or body is unwilling to alter their decision or the reasons for it. In any event the original record should be preserved, not destroyed.
Regulation 10 should also be amended to reflect the fact that key decisions will also be taken by officers. If one officer is to review the record and reasons for another officer’s decision, the review should be by the head of the relevant department or the head of paid service.
Decisions delegated to officers
With the increase in delegation of matters to officers likely to arise from the new executive arrangements we do not believe that the list of delegated powers specified in regulations 12(2)(b) should be restricted to include only those powers delegated to officers for any period longer than six months. We believe in future the list should include all power delegated for longer than a month. This would allow for genuinely temporary delegation – while the relevant member of the executive is away on holiday – to be exempted from the list, while requiring the transfer of powers to be genuinely transparent. A shorter cut off date should also help to concentrate minds as to whether it is proper to delegate significant matters away from elected members for long periods of time.
Electronic availability of information
We believe the guidance should explicitly encourage councils to make much of the information required by these regulations available on the Internet as well as on paper. The categories of information required by regulation 12 seem prime candidates for electronic distribution, but we also believe the government should encourage councils to make forward plans available on the Internet. This work required by this would, we believe, further stimulate improvements in council’s information processing and distribution. An explicit reference could be made in the guidance to the potential for linking this information with the publication schemes required under clause 17 of the Freedom of Information Bill (HL Bill 55 as of 2/8/00).
Meetings of the executive and its committees
In light of the progress made on 24 July 2000 when Lord Whitty made clear that executives should meet in public when formally discussing key decisions – regardless of who would take the decision – we do not believe it sensible for there to be a distinction in the openness requirements between consideration of ‘key decisions’ and ‘other decisions’. References in the regulations to this distinction should be removed, or we shall be in the strange situation of requiring important decisions to be discussed in public while allowing executives to exclude the public from consideration of lesser matters without reference to the exemptions in Part VA of the1972 Act. This would only serve to bring the new arrangements into disrepute and be a source of further political controversy within a council as to whether sufficient pre-decisional openness has been delivered.
* We are unclear as to whether the definition of “local authority” given in regulation 2 encompasses unitary authorities and city or borough councils outside London.
* We believe the definition of “newspaper” in regulation 2 should be amended to reflect that news organisations may in future only supply information electronically (over the Internet or by other means). An organisation which distributed news free of charge in this way would not appear to fall within the present definition.
* Regulations 4(5)(b), 5(5)(b) and 7(4) should be amended to substitute for “by reference to the descriptions in Schedule 12A of the 1972 Act” the words “by reference to which of the specific paragraph(s) in Part I of Schedule 12A to the 1972 Act”. We have come across instances of councils merely stating that a report is exempt because it would disclose information in relation to ‘paragraphs 1-12’, which leaves the public completely in the dark as to the reason for considering the report as exempt and unable to challenge the claim for exemption in any meaningful way.
* We believe that references in the regulations to decisions being recorded “as soon as reasonably practicable” after the meetings or individual has taken it should be amended by adding “and in any event no later than three working days”.
* Regulation 22(b) should be amended so as to secure that not only are sufficient copies of the papers available, but also that the fact that they are available is published. This relates to the previous points made in relation to advance access to papers under regulation 10.