Minister attacks monitoring officers for giving "far too much poor advice"

Far too much poor advice is being given by monitoring officers – leading members to feel that they are being bullied, Local Government Minister Brandon Lewis has claimed.

Speaking during a Westminster Hall debate on local government standards, Lewis criticised some councils for introducing, on advice from officers, standards regimes that were effectively no different from the old arrangements that existed prior to the Localism Act 2011.

He also called on monitoring officers to “cut out the gold-plating” and be proportionate.

In response the Association of Council Secretaries and Solicitors, which represents monitoring officers, defended their role.

The association said: “The essential role of the monitoring officer is to uphold high standards of corporate governance in the authority and (in an appropriate manner, depending upon the circumstances) to speak truth unto power and to make a formal report in what will usually be exceptional circumstances.

“Clearly this function will be discharged differently across the country and different judgments will be made. However, this is a function of localism and can be addressed at local level.”

The minister insisted that the revised local government standards regime brought in by the Localism Act 2011 “puts members firmly in the driving seat when it comes to deciding what a council’s standards arrangements should be”.

He added: “They are for local councils to decide. In that role, it is right that members look to their officers for advice, as that is what officers are for, but I have to say that much of the advice being given to members is far from satisfactory.

“There are some very good monitoring officers out there, but far too much poor advice is being given, leading members to feel that they are being bullied by officers.”

The minister claimed that what he had seen showed that officers had failed to grasp what the reform was intended to be about – maintaining high standards while avoiding bureaucratic burdens and doing away with vexatious complaints.

“Whether because of excessive caution, bureaucrats’ love of bureaucracy for its own sake, or a misplaced belief that they and not members should be in the driving seat on standards, officers often advise that something more or less akin to the old Standards Board regime should be continued,” he said.

Lewis added: “I see no need for a heavy, bureaucratic, gold-plated approach that has no place in the new localist standards arrangements, which should be driven by and for members.”

The minister said he wanted to send “a clear message” to council leaders and members, whenever they receive such advice, to tell their officers to think again. “They must challenge their officers to get it right….and instruct them to come forward with something different,” he suggested.

“My message to monitoring officers and others who give that advice is to be professional and proportionate and to cut out the gold-plating. Let us see some common sense.”

In other comments, Lewis said:

• The most effective sanction for wrong behaviour “is found in transparency, particularly through the ballot box”;
• Since taking his current office, he found it “worrying that, despite the change in regime, monitoring officers are expanding and developing as an industry, and changing the regime seems only to have brought that industry further in-house, rather than getting rid of it”;
• The new standards regime was about empowering councillors to deliver high standards of conduct – “it is not about creating a new legal industry”;
• Monitoring officers are there to provide professional advice, not to decide what is to happen or judge whether a member has a disclosable pecuniary interest. “It is the responsibility of the member concerned to make that judgement”;
• Something he has seen far too much, particularly in parish councils, is organisations advising that, in setting precepts, all members have to declare a pecuniary interest, be they district councillors, county councillors or unitary councillors;
• The transitional arrangements did not require councils to continue to investigate a complaint under the old regime. “If a council considers a complaint unworthy of investigation and the resources that that would entail, it can bin the complaint”.

Bob Neill, the former minister who secured the Westminster Hall debate, expressed concern about the restrictive approach taken in some councils to the issue of predetermination, particularly in relation to planning matters.

He said: “We seem to be getting into a very dangerous state of affairs, where monitoring officers, perhaps through an abundance of caution – I put that charitably – come up with an interpretation of the law that clearly inhibits councillors from expressing a view.”

The ex-minister went on to claim that bad legal advice was being given to members, which undermined the proper purpose of standards.

Neill suggested that the mindset of some, but not all, monitoring officers had not changed to reflect the localism agenda.

“Sadly, we have seen the growth of a risk-averse culture in monitoring standards and the way in which councils transact important areas of business,” he added. “That risk-averseness needs to be addressed.”

The former minister argued that there was a serious question about the way in which monitoring officers sometimes operate.

“That job seems to have grown,” he said. “Many monitoring officers – those in my local authority, for example – are excellent; they do a thoroughly good and professional job and it would be wrong to say otherwise.

“In other instances, however, the role is either amalgamated with other functions, or, frankly, does not always seem to be held by somebody with any considerable degree of legal expertise, which is not satisfactory.”

A third MP, Labour’s Helen Jones, said it was difficult for councillors who were new to local government or who did not have a legal background to challenge bad advice.

“Part of the problem exists particularly in the planning system, where officers, especially monitoring officers, get frightened of big development firms and their lawyers,” she argued.

“They sometimes seek to protect councillors from the effects of that, but they often go the wrong way about it.”

On the issue of alleged ‘gold-plating’, ACSeS said: “If in this context it means adding unnecessary elements to core legal requirements then this is not recommended.

“However, legal advice is a always a creature of specific local circumstances and the approach recommended by ACSeS is for its members to give robust, practical, proportionate and context sensitive advice to their authorities in the light of all material circumstances.”

The association said it was fundamental to localism that different authorities were free to put in place the legal and other arrangements they choose. “If local members are unhappy at any particular issue then it is of course a local matter for them to address this.”

ACSeS also sought to address criticism during the debate of advice given by some officers in relation to predetermination.

The association said: “The law surrounding predetermination is now mature and a high evidential threshold has to be surmounted before a court will consider such a finding. ACSeS always recommends a sensible and proportionate approach in line with the present state of the law.

“However, every situation is clearly context sensitive and (in line with the local flexibility of localism) different monitoring officers will of course respond differently to different sets of circumstances. In line with localism if a member disagrees with legal advice he or she can of course pursue this through proper internal channels.”

To read the Westminster Hall debate in full, click here.

UPDATE: ACSeS hits back at minister in row over role of monitoring officers

Philip Hoult

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