Tally Ho!
Current and former ministers joined MPs recently in attacking the performance of some monitoring officers. The appropriate place to deal with these issues was back at base and not in Parliament, argues Nicholas Dobson.
No actual thundering of horses’ hooves, baying of hounds or blasts on the huntsman’s horn in Westminster Hall on 16 January 2013. And not a fox in sight. For the Westminster Hunt had other prey in mind. And a creature that enjoys no protection under the Hunting Act 2004.
As honourable members galloped their impassioned flights of rhetoric across the venerable floor, they were fired-up for the kill. For this dratted species had been unreconstructedly gold-plating and complicating the small but perfectly formed new standards regime! Tally-ho! The Monitoring Officers had broken cover and the chase was on!
This was of course the Westminster Hall debate on the local government standards regime which had been sought by former local government minister, Robert Neill so he could: "....put before the House certain concerns, which have come to....[his]....attention over the past few months, about how in some places the regime operates in a way that does not always reflect the intentions the House expressed when the Act and subsequent secondary legislation went through."
And, indicated Mr. Neill, those concerns arise from authorities of every political hue.
Essentially the charge was that many monitoring officers across the country are giving their members over-cautious, wrong and in one case "frankly scandalous" advice. A few soundbites give a flavour.
Robert Neill MP
"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 [on predetermination] that clearly inhibits councillors from expressing a view.
"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. That risk-averseness needs to be addressed."
Mr. Neill did fairly point out that: "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."
And he may well have had a point about some authority arrangements when he went on to say: "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."
But his concerns were the dominant theme as he hoped the Minister would be able to: "...comment on what the Government see as the proportionate and appropriate use of monitoring officers to ensure probity without creating an industry via the back door."
For: "All too often, there seems to have been pressure on members simply to recast the old regime but give it a localist badge." And: "An extremely restrictive interpretation of the legislation, which goes well beyond case law or statute, persists all too frequently."
Richard Drax MP
"...when I ask my constituents whether they have spoken to their local councillor, they say that they have but that the councillor cannot say anything. . .either because the rules have been misunderstood, or because, in some cases, an anxious or over-zealous monitoring officer has put the fear of God into councillors."
Helen Jones MP
Mr. Neill is "....right that members in local government are often given bad advice, and it is particularly difficult for those who are new or who do not have a legal background to challenge it. Part of the problem exists particularly in the planning system, where officers, especially monitoring officers, get frightened of big development firms and their lawyers."
Brandon Lewis MP, Parliamentary Under-Secretary of State for Communities and Local Government
"...officers have simply failed to grasp what the reform is about. It is about having arrangements that maintain high standards while avoiding bureaucratic burdens and doing away with all the petty, vexatious complaints that bedevilled the operation of the old regime. 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.
"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."
Specific cases and authorities were also mentioned under the protection of Parliamentary privilege.
In the circumstances, ACSeS on behalf of monitoring officers generally responded quickly to immediate press queries pointing out that: "The essential role of the monitoring officer is to uphold high standards of corporate governance in the authority and (in an appropriate manner....) 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."
This was followed up by a detailed open letter from ACSeS President, Philip McCourt, to Local Government Minister, Brandon Lewis which amongst other things pointed out that: "Most of the contributions to the Westminster Hall Debate seemed to display an unfortunate degree of prejudice and animus towards monitoring officers generally. This appeared to be based upon anecdotal (and in their nature one-sided reports) of particular disagreements and other difficulties."
Furthermore:
"Monitoring Officers certainly have no wish to gold-plate or otherwise complicate existing statutory requirements. On the other hand.... such officers already have their work cut out as senior authority advisers in a time of pressing financial austerity to ensure safe and sound corporate operations in the public interest, whilst also providing creative and pragmatic legal advice to yield increasing value from diminishing resources."
Members of Parliament do of course have a legitimate public interest in the practical operation of statutes they have been instrumental in enacting. But whilst the public would reasonably expect such deliberations to be robust, they would equally expect them to be measured, properly evidenced and fair, particularly when specific reference is made to individual council officers with no right of reply.
The whole point of course is that localism is meant to be local. In other words if something is genuinely broke locally, then it should be fixed locally. For whilst (as the open letter pointed out) most monitoring officers carry on their duties "with acuity, tact, political sensitivity and practical proportionality", in the nature of things one or two individuals will inevitably sometimes fall short. However, the appropriate place to deal with that is back at base and not on the national Parliamentary stage.
ACSeS of course has no regulatory power over its members, most of whom are serving monitoring officers. But the advice and guidance issued by the Association is always framed to be sound, proportionate and politically aware.
Sir Winston Churchill was reported to have remarked at a June 1954 White House luncheon that: "to jaw-jaw is always better than to war-war". And, as someone who led Britain to victory in WW2, he should know. Consequently, the open letter to the Minister concluded by saying that: "ACSeS would welcome meeting with yourself and your officials so that relevant concerns can be addressed positively and constructively in the public interest." For a civilised meeting is likely to be more productive than a galloping hunt with blood up in full cry.
Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.
January 2013.