A test of strength – part two

In the second part of his article on the transition to a ‘Strong Leader Plus’ model of executive, Peter Keith-Lucas looks at the process for change and the practical implications. Part one of the article can be read here.

The process for change to a Strong Leader Plus model is set out in ss.33E to 33G of the Local Government and Public Involvement in Health Act 2007. The legislation is far from clear, but taken literally, it sets out a 3-stage process.

Stage One

Before drawing up proposals for change, the authority must “take reasonable steps to consult the local government electors and other interested persons in the area” (s.33G(6)).

At this stage there is, of course, a choice of moving either to a Strong Leader Plus model or to a Mayor and Cabinet Executive model. In practice, consultation with a blank sheet of paper is unlikely to be very productive, and the recent Breckland DC judgment against the Local Government Boundary Committee indicates that there must be a proposition upon which any consultation is conducted. So it would be sensible if Cabinet recommended to Council, and Council resolved, that the authority’s preferred option was to consult on the basis that the authority would prefer, subject to the outcome of the consultation, to move to a Strong Leader Plus model.

The extent of consultation is not prescribed. My advice would be that it would be sufficient, in the Cabinet recommendation and Council resolution there should be a brief statement of what the changes would mean, and of the perceived advantages and disadvantages of Leader and Mayor structures, and that the authority should formally seek the views of a limited number of partner authorities and organisations, and place a modest advertisement in the local newspaper and on the authority’s website. Individual authorities may decide to do more, but given the absence of any scope for variation in the Strong Leader Plus model, it seems unnecessary to conduct extensive consultation on a non-issue. Although the Act does not define the duration of consultation, by analogy with the Central-Local Government Protocol on consultation, consultation on principles should last 12 weeks.

Stage Two

The authority must then consider any representations received from the consultation and draw up proposals, which should be a schedule of the proposed changes to the Constitution, the implementation timetable and any transitional arrangements. In drawing up these proposals, the authority must have regard to the impact on the three Es (economy, efficiency and effectiveness). The Act refers to the “authority” drawing up the proposals, which probably indicates that this requires a second resolution of Council (s.33E(2), (3) and (7)).

Once the proposals have been drawn up, the authority must make them available to the public and advertise that they are available. There is no provision for anyone to comment on them or for the authority to have regard to any such comments, but it would be unreasonable for an authority not to do so. The period for such publicity is also not prescribed but, again, by analogy with the Central-Local Government Protocol, six weeks’ publicity on details should be sufficient.

Stage Three

Then s.33F says that the authority (i.e. Council) must resolve to implement the proposals.

All this is extremely tedious for what is probably a very minor change, prescribed by legislation, especially where no-one is seriously contemplating a Mayoral option. In practice, in the first round, it is apparent that some county councils simply went straight to the operative resolution to implement without any of the prior stages. The process may be more contentious for the London boroughs and metropolitan authorities, where there is a greater prospect of pressure for a Mayor model. But strict compliance would seem to indicate that the first report should be made to Cabinet and then Council at the very latest in September 2010 (as appropriate), publish and consult in October/November, and go back to Cabinet and Council in December.

Remember that there are many bits of the Council’s Constitution which are not “executive arrangements”, such as the Council Standing Orders, Scheme of Delegations and so on, and you might wish to take the opportunity of changes to the executive arrangements to get Cabinet and Council to approve changes and updates to these other provisions.

Implementation

You only need to go for a local referendum if you were proposing to move to or from a Mayor model. There is a danger that publicity for the change to the Leader and Cabinet Executive (England) model could trigger a petition for an elected Mayor model of executive, requiring you to hold a local referendum, in which case the Leader and Cabinet Executive (England) model becomes your fall-back option in the referendum. The Act seems to say that, where a petition is received and so you hold a referendum, you should still persist with the change to a Leader and Cabinet Executive (England) model pending the outcome of the referendum and the possible introduction of a Mayor model with the need for a Mayoral Election.

However, assuming no petition, the new structure then comes into effect three days after the next local elections. If that is a whole-Council election, then Council elects a new-style Leader at the Annual Meeting in May 2011 for a four-year term. If the May 2011 elections are by halves or thirds, the term of office of the new Leader is defined to be as long as the person elected as Leader has before they face re-election as a Councillor. So his/her term of office as Leader is until the Annual Meeting following the end of his/her current term of office as a Councillor (ss.44D(3) and 44E(3)). So, in authorities with elections by thirds or halves, successive new-style Leader could be elected for 1, 2, 3 or 4-year terms, which rather undermines the purpose of the Act to secure continuity in leadership.

What happens if you fail to do this?

Section 72 provides that if an authority fails to implement these provisions, the Secretary of State can intervene in the period before May 2011 and by order prescribe the application of the Leader and Cabinet Executive (England) model as from May 2011. However, Sch.4, para.4 also provides that an authority which has failed to pass the operative resolution by 31 December of the relevant year can at any time up to three days after the next local elections simply draw up and adopt “proposals”, apparently without any consultation or publicity.

What changes will be required to the Constitution?

• Introduction and Summary: Minor changes to describe the new structure
• Article 12 – The Executive: It isn’t always Article 12, but there will be an Article which sets out the role and powers of the Leader, who determines the size of the Cabinet, who appoints and dismisses members of the Cabinet, who can delegate functions to individual executive members. This Article will now have to include provision for the Deputy Leader. I would suggest that to ensure accountability the Article should provide that such decisions should be effective only upon notification in writing to the Proper Officer.
• Part 3 – Responsibility for Functions: The Scheme will now have to make it clear that it is the Leader who allocates Cabinet Portfolios and determines the powers of individual Cabinet Members, and approves the scheme of delegation of executive powers to officers.
• Part 4 – Procedure Rules: Council Procedure Rules should be amended to provide for the Leader to report to Council on appointment and changes to the Cabinet. The standard procedure for Annual Council should now omit election of Leader (except in the year in which the current Leader’s term of office expires) and the election of other Cabinet Members. It is open to Council to amend its Standing Orders to provide that a motion to remove the Leader shall require a notice of motion in writing signed by a certain number of councillors, and might have to include a motion to appoint another named councillor as Leader, although such a requirement could be over-ridden by suspension of this part of Standing Orders. Such a provision would help to eliminate ad-hoc challenges to the Leader, but should not be so restrictive as effectively to prevent any such challenge.

Can an Authority Anticipate these Changes?

An authority can only implement the changes in accordance with the statutory timetable. So, it can make changes to move as far as possible to a “Strong Leader” model now, by resolution of Council and “appropriate consultation”, but it cannot make the final three changes. And even if it goes to a “Strong Leader” model now, it will still have to go through the three-stage process and implement the final changes to Strong Leader Plus in accordance with the statutory timetable.

The statutory timetable sets out the latest dates by which the authority must pass the operative resolution and implement the changes. It does not prohibit undertaking the three-stage process and passing the operational resolution earlier than the statutory deadline. However, any authority which goes through this process significantly earlier than it needs to, even 18 months before it needs to, is going to attract attention, and give rise to the suspicion that it is doing so for some ulterior purpose.

Practical Implications (1): “Interregnum”

The concentration of power in the hands of the new-style Strong Leader Plus could create problems for a balanced authority, where members may not be agreed on whom they wish to trust with the power to appoint a single-party Cabinet, and with a  four-year term of office. I anticipate that in some authorities it may prove impossible to reach agreement at the Annual Meeting, and the election of Leader may need to be deferred to a subsequent meeting, to allow for behind-the-scenes discussions between parties. In order to ensure that the executive functions of the authority continue to be discharged, it would be sensible to ensure that the Chief Executive has a broad power to discharge the executive functions of the authority in the absence of a Leader, after consultation with leading members where appropriate (although there must be an element of doubt as to whether such delegations would last beyond the departure of the existing Leader and Cabinet).

Practical Implications (2): Existing appointments and delegations

Where the Leader is removed from office mid-term, his/her appointments of Cabinet Members and of Deputy Leader survive his/her departure. So the Deputy Leader takes over the functions of Leader until such time as a new Leader has been elected, and the Cabinet remains in post and can continue to meet and function, until such time as the new Leader appoints a new Cabinet.

Given that the new Strong Leader Plus is a different being from the old Leader, it is probable that existing delegations from the existing Leader and Cabinet do not survive the transition to Strong Leader Plus. So it would be sensible to ensure that a new Scheme of Executive Delegations is approved by the new Leader immediately upon election, and that any actions of officers in the interregnum are formally ratified.

In the new structure, all executive functions rest with the Leader, who then determines whether they are to be discharged by the Leader personally, by the Cabinet or a Cabinet Committee, by an individual Cabinet Member or by an officer, and these arrangements are set out in a Scheme of Delegations which normally appears as part of Part 3 of the authority’s Constitution. That scheme of delegations will survive the departure of a Strong Leader Plus (either at mid or full term) until the scheme is amended by the new Leader (or by the Deputy Leader during the interregnum).

Practical Implications (3): Term of office or replacement Leader

The legislation makes no specific provision for this situation, and there is scope for regulations to define the position. However, applying the wording of s.44D and s.44E, where the Leader is removed mid term by resolution of Council, the new election of the replacement Leader follows the same rules as if it had been an election at Annual Meeting and so the new Leader will automatically hold office, once elected, for the balance of his/her term of office as a Councillor, and not for the balance of the term of office of the previous Leader. So it is conceivable that a Leader would be removed after 3½ years in post, and a replacement Leader elected who has 3½ years’ term of office as a councillor remaining, resulting in there being no election of Leader at an Annual Meeting for a period of seven years.

Practical Implications (4): Council and Scrutiny

The heightened powers and security of office of the new-style Leader is likely to place more emphasis on formal meetings of Council (and any provisions for questions to the Leader) and on Scrutiny Committee meetings (and the power of an Overview and Scrutiny Committee to require the attendance of the leader at its meetings to answer questions) as a means of holding the Leader to account. I therefore anticipate more antagonistic meetings of Council and of Scrutiny Committees, as a result of these changes.

Peter Keith-Lucas is a local government partner at Bevan Brittan (www.bevanbrittan.com).