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A right Pickles' pickle

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Regulations designed to introduce greater transparency in local government decision-making came into effect this week, amid confusion over whether they apply to decisions by officers. The situation is a mess, writes Geoff Wild.

On 10 August, the Government issued the Local Authorities (Executive Arrangements)(Meetings and Access to Information)(England) Regulations 2012.

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These will have significant implications for the way in which local authorities will be expected work in order to achieve greater openness and transparency. Yet there was only three weeks’ notice of their introduction and no prior consultation over their far-reaching consequences.

The regulations came into force on 10 September 2012 and they:

  • Strengthen current requirements to publish agendas and accompanying reports five clear days before a meeting (reports will no longer be allowed ‘to follow’ the agenda front sheet).
  • Require publication of all reports in support of decisions on a council’s website.
  • Strengthen the expectation that all Executive meetings will be held in public. This includes a new requirement that 28 days' notice be given where a meeting of the Executive will be held in private, including a public explanation of why this decision has been taken.
  • Require more information to be made available to the public and news organisations, including background documents as a matter of course and “related” materials on request.
  • Have major implications for officer decisions. Any decision taken on behalf of the Executive by an officer must now be recorded and published, together with reasons and supporting materials.
  • Key Decisions no longer have to be published within a Forward Plan, but a similar document will continue to exist and will continue to advertise Key Decisions at least 28 days in advance of them being taken.
  • Introduce new requirements to declare and record conflicts of interest when taking Executive decisions (quite separate from disclosable pecuniary interests) and allow dispensations to be granted by the Head of Paid Service.
  • Broaden the definition of a news organisation to facilitate social media and hyperlocal bloggers to qualify and increase their right to reasonable facilities from which to report at meetings.
  • Set out additional rights for all local authority members, and particularly members of overview and scrutiny committees, to access documents “relating to” Executive business.
  • Introduce a new criminal offence of intentionally obstructing the exercise of any right under the regulations, or refusing to supply a copy of a document for inspection.

Concerns have already been expressed at the way these Regulations were introduced and the logistical and administrative challenge they represent. The District Councils Network (DCN) has written to DCLG, complaining that there has been no formal consultation exercise undertaken in connection with this statute and state:

“…it is with grave concern I bring to your attention the significant additional burden that will be placed on local authorities as a result of their passing. This seems to be totally at variance with the CLG’s own campaign to reduce regulatory burdens on local authorities. Not all of the Regulations are inappropriate but Part 4 Regulation 13 will tie up local authorities in completely unnecessary processes and reduce efficiency. 

"This Regulation [Reg 13(4)] requires a record to be kept of every executive decision by an officer, which prescribed information to be kept. In essence this covers every single decision made (excluding non-executive functions such as personnel issues, elections and regulatory matters) including the purchase of paper clips or indeed the decision to write a letter in response to a complaint about the level of a service. There are hundreds if not thousands of such decisions made every week in every local authority. Authorities have standing orders that govern expenditure and contracts and officers work in that control framework. To create this additional burden coupled with the reduction in available funding will mean important business will not get done in a reasonable manner. This provision alone has the capacity to set local government efficiency back many years.“

Consequently, DCN has urged DCLG to revise or repeal this regulation as a matter of urgency.

Indeed, it is unlikely that it was ever intended that the regulations should apply to all officer decisions, as the quote from Rt Hon Eric Pickles MP (my emphasis, below) demonstrates: “Every decision a council takes has a major impact on the lives of local people so it is crucial that whenever it takes a significant decision about local budgets that affect local communities whether it is in a full council meeting or in a unheard of sub-committee it has got to be taken in the full glare of all the press and any of the public."

Against the concern that authorities might spend a disproportionate effort in publicising a multitude of minor administrative decisions, clarity from the DCLG on the issue would have been extremely welcome.

Instead, what they have come back with is astonishing.

Firstly, on the absence of consultation, they say that this was unnecessary, as the new regulations drew significantly on the old Local Authorities (Executive Arrangements)(Access to Information)(England) Regulations 2000. Taken to its logical conclusion, this suggests that anything loosely based on something made 12 years ago does not require consultation. So, the next time that a local authority wants to amend its charging policy for elderly care, for example, provided it has “significantly drawn on existing provisions” (to quote DCLG in its Explanatory Memorandum) then it does not need to consult with anyone. Really?

Secondly, DCLG have said: “It looks like the District Councils Network has got the wrong end of the stick. [The regulations do] not apply to officer decisions…It looks like they have confused “executive decision” (i.e. a decision of the Cabinet) with decisions of council officers, i.e. signing off stationary orders, etc. They are not an executive decisions [sic] for the purposes of this regulation.”

If this was not so tragic it would be hilarious. This statement flies completely in the face of the wording of the regulations.

Under the regulations, “executive decision” means a decision made, or to be made, by a decision maker in connection with the discharge of a function which is the responsibility of the executive of a local authority.

“Decision maker” is defined as the decision-making body by which, or the individual by whom, an executive decision is made. This includes an officer, as Regulation 13(4) states:

“As soon as reasonably practicable after an officer has made a decision which is an executive decision, the officer must produce a written statement which must include—

(a)   a record of the decision including the date it was made;

(b)   a record of the reasons for the decision;

(c)   details of any alternative options considered and rejected by the officer when making the decision;

(d)   a record of any conflict of interest declared by any executive member who is consulted by the officer which relates to the decision; and

(e)   in respect of any declared conflict of interest, a note of dispensation granted by the relevant local authority’s head of paid service.”

How can the DCLG possibly claim that the regulations do not apply to officer decisions? How can they possibly claim that “executive decisions” are only decisions of Cabinet?

Above all, how can they, and the local authorities significantly affected by these poorly drafted regulations, now extract themselves from this Pickles’ pickle?

Geoff Wild is Director of Governance and Law at Kent County Council.

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