ACSeS issues guidance on executive decisions and recording requirements

The Association of Council Secretaries and Solicitors (ACSeS) has issued a guidance note for its members on executive decisions taken by officers in the aftermath of controversial new regulations that came into force last month.

The association insisted that it actively encouraged local authority transparency as a key part of sound corporate governance.

But it added that it remained concerned about the “substantially increased bureaucratic burden” placed on local authorities by the recently enacted Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012).

Before the regulations came into force on 10 September, councils were only required to record and publish information on ‘key decisions’ taken by officers. ACSeS said such decisions were those “likely to result in significant budgetary expenditure or savings or likely to have a significant effect on communities living or working in two or more authority wards or electoral divisions”.

From 10 September, however, the requirements now apply to all ‘executive decisions’.

The association said: “ACSeS entirely agrees that the public should be kept informed about important council decisions. However, the problem is that these requirements do not catch just important decisions. They can affect quite minor decisions which would not interest most members of the public. In other words ‘small fry’ decisions making up the big picture of ‘key decisions’.

“This is because under the new regulations an ‘executive decision’ is defined as one made in connection with the discharge of a function which is the responsibility of a local authority executive. And that can mean most decisions taken by officers, even those which are minor but which happen to be connected with an executive function.”

ACSeS added that the width of this decision “therefore creates obvious vulnerabilities to authorities in the light of executive decisions taken by their officers”.

It argued that any challenge to an unpopular decision would include a close analysis of the constitutionality of that decision. “And just how the officer has taken the decision in the light of the Regulations will find itself uncomfortably under the forensic microscope,” the association said.

The written, publicly available statement on ‘executive decisions’ must include details such as the decision, its date and reasons, any alternative options considered and rejected, any conflict of interest declared by any executive member consulted by in relation to the decision and any ‘note of dispensation’ concerning any such conflict of interest granted by the authority’s head of paid service.

ACSeS President Phil McCourt, Assistant Director – Law and Governance at Milton Keynes Council – said: “ACSeS members operate at the sharp end of law and governance in their authorities. It therefore falls to them to take a lead in trying to trace a practical but pragmatic path through the difficulties caused by the officer executive decision requirements in these regulations.

“Whilst clearly the law currently remains as enacted such time as it is changed, we hope that this ‘guidance’ note (together with the recent helpful opinion from Clive Sheldon QC) will assist our members in ensuring that their authorities apply these new provisions reasonably, proportionately and lawfully in the light of their purpose and all material circumstances.”

The guidance – drafted by ACSeS’ Communications Officer Nicholas Dobson, a consultant at Pannone – is not intended as legal advice.

ACSeS recommended that officers proposing to take an executive decision should take their own legal advice before making a decision “if they are in any doubt at all as to the legal status of their proposed action”.

The association added: “It is nevertheless hoped that the note will help ACSeS members to clarify and focus their thinking when taking or advising in relation to officer executive decisions.”

For more information, contact Nicholas Dobson by This email address is being protected from spambots. You need JavaScript enabled to view it..