Archives for local government

Move to restrict use of FOI by campaigners criticised

A survey of local councils, aimed at gathering information to push for restrictions to the Freedom of Information (FOI) Act, has been criticised by the Campaign for Freedom of Information. A body representing local authority lawyers has appealed to councils on behalf of the Local Government Association (LGA)  saying the LGA is thinking of calling for changes to the Act and asking them to supply details of “problems” caused by it. [*] Read More

Please follow and like us:

Response to consultation on access to local government information

This response calls for the tightening up of the exemptions in the access to local government information provisions, for the exemptions to be subject to a public interest test and for an effective mechanism to appeal against decisions to hold meetings in private. It also highlights the need to extend the scope of the openness provisions to bodies carrying out services on behalf of local authorities and to parish councils.

Please follow and like us:

Local government and openness: briefing for a Lords debate

Briefing for the Lords debate on the Regulations for access to information and meetings in local authorities, held on 8 February 2001. It explains the Campaign’s concern that the Regulations could lead to greater secrecy in local government.

Please follow and like us:

Response to consultation on local authority openness regulations

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It is clear from the responses to the consultation on the second version of the draft guidance that many authorities seek either much wider discretion or a much narrower definition of ‘key decision’.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.

 

Forward Plans

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.

 

Contact details

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.

 

Background papers

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).

 

Recording decisions

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.

 

Other matters

* 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.

Please follow and like us:

Campaign welcomes Government moves on local authority openness

Local authorities will in future have to meet in public when discussing ‘key decisions’ following a last-minute concession by the Government last night.

Read More

Please follow and like us:

Local Government Bill: Briefing for Report Stage

The briefing deals with the Report Stage amendments to the Local Government Bill proposed by an all-party group of MPs. It sets out our concern at the Bill’s approach to access to meetings and information within local government, as well as its creation of unnecessarily wide offences for the disclosure of information. Although the government have announced some improvements to their proposals for access to meetings we are still concerned that many decisions and discussions will be held in private.

Please follow and like us:

Local Government Bill: Briefing for Committee Stage

The briefing deals with the amendments to the Local Government Bill proposed by Don Foster MP. It sets out our concern at the Bill’s approach to access to meetings and information within local government. Despite some recently published improvements to the government’s proposals on prior access to papers, we are concerned that the new executives will still be able to hold all their meetings in private.

Please follow and like us:

Local Government Bill – Briefing for Second Reading

The briefing sets out current access to information rights in local government, how the Bill will weaken them, and the changes we believe are essential to prevent this increase in secrecy.

Please follow and like us:

(No title)

A joint briefing with the
Local Government Information Unit and Charter 88 on

Access to Information and
the new Local Government Bill

Introduction

The new Local Government Bill is introducing new political structures such as directly elected mayors into local government. This paper describes our concerns regarding the access to information provisions of the Bill. It sets out:

* The current access to information rights in local government

* How the new Bill would weaken them

* The amendments to the Bill we believe are essential to prevent this increase in secrecy

* What you can do.

 

The changing legal framework

Current access to information requirements
At present, most important council decisions have to be taken at meetings of the full council or its committees, which are subject to the Local Government (Access to Information) Act 1985, as incorporated into the Local Government Act 1972. This requires meetings to be open to the public and media, although exempt information can be discussed and decided in private session. If the meetings are open to the public, agendas, officers’ reports and background papers must be publicly available at least three days in advance. However, some decisions are taken by officers to whom authority has been delegated by the Council, and these decisions are not subject to the openness provisions of the 1985 Act.

What the Local Government Bill covers
The Local Government Bill, published in November 1999, provides for:

* a new power to promote the economic, social and environmental well-being of the community, develop partnerships and community planning

* changes to political structures introducing mayors and cabinet style executives

* a new ethical framework

* powers to change the timing of local elections

* and a range of other issues.

The Bill applies to England and Wales. The National Assembly for Wales will exercise in respect to Welsh local government the powers the Secretary of State has in England.

The new structures
Once it becomes law, the Local Government Bill will require all councils in England and Wales to introduce one of a range of new political structures. The main options are:

* a leader elected by the council with a cabinet style executive consisting of other councillors,

* a directly elected executive mayor who can appoint other councillors to an executive,

* a directly elected mayor with a ‘council manager’ (organisational head with decision-making powers).

Executive bodies will not be required to reflect the political proportionality of the council (unlike the committee system). Where a single party has majority control of the council, executives are likely to be single party bodies.

The legislation sets out which decisions will be the responsibility of the executive, which the full council and which will be decided by multi-party committees. The council will approve the budget and taxation levels. It will agree statutory plans and strategies such as the Best Value Performance Plan, the Children’s Services Plan, the Community Care Plan, the Development Plan (such as structure or unitary development plans), the Local Transport Plan, the Early Years and Education Development Plan and others.

Within this framework, the executive will take service decisions. These decisions will not have to be ratified by the full council. Executive decisions can be delegated to individual politicians, including the mayor, or to area committees or joint bodies.

Regulatory matters will be in the hands of multi-party committees. These will include planning permission, and licensing.

Multi-party scrutiny and overview committees will review services and policies, but will not make executive decisions about services.

What the Bill would mean for openness
As the Bill stands 1 the following requirements for openness would be placed on authorities:

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

* Executive or cabinet bodies will not be required to meet in public, but must publish decisions after they have been taken

* Decisions of mayors or individual executive politicians will not be subject to the provisions of 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

The consequences of these new structures for openness in local authority decision-making are significant. Many decisions will no longer be taken in public, unless the authority opts to do so. Information about proposed decisions will be unavailable 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. The fact that mayors and individual politicians will wield considerable power in their own right – their decisions will not have to be ratified by the executive or council – adds to concern about these arrangements. Vital decisions about education, housing, social services, the closure of facilities or the contracting out of services may be taken in far greater secrecy than at present.

The Bill as currently drafted gives the Secretary of State, in England, and the NAW in Wales, powers to make regulations on access to information. The Bill states that this can include provision for executives to meet in private. Draft guidance (for England) has also been published which makes it clear that the executive can meet either in public or private. This also states that the local constitution (approved by the full council) must allow the executive to decide for itself whether to meet in private.

The draft guidance also states that the local authority’s constitution must set out protocols for recording and publishing decisions taken by individual members of the executive, including the executive mayor.

The government’s intention is to leave openness in large areas of decision-making to the discretion of the new executives. It removes the duties on local authorities to take decisions in public, and the public’s right to papers relating to these decisions, which were 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.

The draft guidance urges the executive 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 at 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.

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

The Freedom of Information Bill
The Freedom of Information Bill, which is also before Parliament, would create additional rights to information held by councils. However, the purpose of the FOI Bill is to create rights of access to information, not rights to attend decision-making meetings. The proposed access rights are subject to extremely broad exemptions. 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, decisions will be extremely difficult to challenge even if they are clearly wrong. Authorities will have to consider the discretionary disclosure of such information in the wider public interest. However, the FOI Bill allows authorities themselves, and not the independent Information Commissioner, to have the final say on where the public interest in disclosing the information lies.

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 decisions.

 

Changes which should be made to the Local Government Bill

This section sets out changes we believe should be made to the Local Government Bill.

The Bill’s requirements on access to information need to be strengthened, particularly in relation to forthcoming decisions. The public should know what decisions are about to be taken, and have access to papers relating to that decision in advance. The Bill should maintain the rights of non-executive councillors, press and public, to prior notice of decisions to be made by the executive, and by individuals with executive powers. This would help to build public confidence in new structures.

The changes that are needed will have to reflect the different types of structures that may be adopted.

Meetings of Executives
Local authorities may decide to introduce an executive in which decisions are taken by a ‘cabinet’ of councillors. The Bill should be amended to make their meetings 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 on proposed decisions 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-decision disclosure as at present.

If the collective meetings of the executive are not made subject to the 1985 Act, agendas and papers should still be published at least three days in advance. This would be in line with the recommendations of the Joint Parliamentary 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.’ 2

Decisions not involving meetings
Mayors are likely to be responsible for many types of decisions which they will effectively take on their own. No formal meeting, as such, will be involved. Individual ‘cabinet members’ may also be given similar powers, and the Bill will also allow for a wider range of decisions to be delegated to council officers. In these cases the Local Government (Access to Information) Act cannot directly apply. However the Bill should be amended so that the public is given equivalent rights to see papers before decisions are taken. 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. 3 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

The above proposals would do no more than maintain current standards of openness in local government. As well as protecting the public’s existing rights, this would help build confidence in the new structures and contribute to their effectiveness. The government’s aim for the Bill is 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.” 4 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.” 5 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 requirements for openness. Some local newspapers are already reporting concerns about an increase in secrecy by some authorities which have adopted the new arrangements on a trial basis.

The role of ‘backbench’ councillors will be undermined if they do not have advance notice of decisions.
Without this councillors of the majority group may seek to make even greater use of party political meetings to influence decisions. Minority group councillors will be even further excluded from decisions. Prior notice of decisions to be made will lead to smoother decision-making, and less conflict and recrimination.

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. If there is no requirement to publish agendas and papers in advance of decisions this could encourage 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 and there is no evidence that it is impractical. The evaluation by the Policy Studies Institute for the Department of the Environment in 1995 concluded: the administration of the Act appears to work smoothly… “Overall, it was felt that the Act had introduced more discipline, consistency and rigour in the administration and conduct of local authority business.” 6 Effective local government will not be served by abandoning these gains.

 

What you can do

The Local Government Bill is being discussed in the House of Lords in February and is likely to move to the Commons in March.

If you are concerned please:

* Find out what your local council proposes

* Support our case for amendment of the Bill

* Contact local MPs, councillors and in Wales your NAW member, and ask them to ensure that the changed structures will not lead to a loss of openness

* Raise the issue with the local and regional press

It would be helpful if you could keep us informed about any action you take on this issue, let us have copies of letters, and so on.

The Local Government Bill 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.

 

February 2000

 

Endnotes

1. As of 8 February 2000, following amendment in Committee by the House of Lords

2. Joint Committee on the draft Local Government (Organisation & Standards) Bill, HL 102-I, HC542-I, July 1999, para 176

3. ibid, para no.150

4. Draft guidance para 13.11

5. Public Access to Information: An evaluation of the Local Government (Access to Information) Act 1985, Jane Steele, pub. Policy Studies Institute & the Department of the Environment, 1995 (ISBN 0 85374 666 4)

6. ibid

Please follow and like us:

A loss of openness in local government?

Briefing note on local government openness, and the effects of the proposed draft Local Government (Organisation & Standards) Bill and draft Freedom of Information Bill.

Please follow and like us: