DCLG urged to clarify "contradictory" regulations on recording of decisions

The Director of Law & Governance at Kent County Council has urged the Government to clarify a contradiction between two different sets of regulations intended to deliver greater transparency in council affairs.

Geoff Wild has been lobbying the Department for Communities & Local Government (DCLG) to resolve what he considers to be a conflict between:

• The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012; and
• The Openness of Local Government Bodies Regulations 2014.

The DCLG insists that the 2014 Regulations (and the written recording requirements they contain) only cover non-executive decisions. Executive decisions, they maintain, are covered by the requirements of the 2012 Regulations.

However, Wild argues that the wording of regulation 7(2) of the 2014 Regulations suggests that these cover both executive and non-executive decisions.

Regulation 7 requires any full council, its committees, subcommittees and joint committees; parish and town councils; and other local government body to make a written record of certain decisions taken by their officers.

Regulation 7(2) refers to “[decisions] taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee”.

Kent’s Director of Law & Governance said that unless specified to the contrary or otherwise qualified, decisions of a relevant local government body included both executive and non-executive matters.

He added that the fact that the 2012 Regulations exist does not exclude executive decisions from the ambit of the 2014 Regulations.

As things stand, he argued, the two sets of regulations are in conflict with one another.

However, the DCLG has thus far denied that there is any contradiction between the two sets of regulations. It was never the intention for the 2014 Regulations to cover an executive decision, the Department has said.

Kent’s Wild said guidance on which the DCLG sought to rely failed to address the point – in addition to giving examples of executive decisions where non-executive decisions were being discussed.
 
He added: “The DCLG cannot be allowed to get away with such sloppy drafting of legislation, especially when it seeks to impose significant burdens on local authorities, and hopes that it can just be get away with it by saying that it ‘intended’ to mean one thing, when it actually said quite another.

“If this ever got before the courts, judges would have a field day giving the legislation its plain English, literal interpretation.”

Wild continued: “The two sets of regulations are incompatible and inconsistent, despite what the DCLG would try and have us believe, and place different obligations on officers to record and publish decisions, depending on whether they are executive or non-executive.

“Instead, there should be one single, consistent rule applying to all such officer decisions. The 2014 regulations arguably give us this, if only DCLG acknowledged the fact that they apply to both executive and non-executive decisions.”