Opaque Transparency

10 September 2012 brought precarious new excitement for the high-wire life of the local government lawyer. For it was then that extensive new transparency requirements for all decisions of local authority executives kicked in as new regulations hit the stage.

But whilst transparency is the guiding principle of the new rules (the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (S.I. 2012 No. 2089)) these have unfortunately been beset by pockets of opacity and impracticality. And as local authority lawyers began to read through the regs, any frissons tended to be of horror rather than joy as what was involved in meeting the new mandate began darkly to dawn.

What caused most concern was the requirement in regulation 13(4) for executive decisions taken by officers to be recorded in a written statement. This must include: the decision its date and reasons for it, any alternative options considered and rejected by the officer, any conflict of interest declared by any executive member consulted by the officer in relation to the decision and any "note of dispensation granted by the relevant authority’s head of paid service" in respect of any declared conflict of interest.

Whilst these requirements are substantially carried forward from the predecessor regulations (S.I. 2000 No. 3272) there is an important distinction. This is that whilst the previous relevant regulation applied to ‘key decisions’, regulation 13(4) applies to ‘executive decisions’.

This is important since an ‘executive decision’ is one made "in connection with the discharge of a function which is the responsibility of the executive of a local authority". And by default all local authority decisions are those of the executive unless provided otherwise by specified statute or regulations (see section 9D(2) of the Local Government Act 2000). On the other hand a ‘key decision’ is one likely to result in expenditure or savings significant in the light of the relevant budget or significant in its effects on communities living or working in two or more authority wards or electoral divisions.

Given that most decisions of the authority are executive decisions, and that there is extensive functional delegation to officers throughout local government, at the stroke of a ministerial pen, a huge bureaucratic burden was apparently imposed on authorities to enable officer executive decisions taken after 10 September 2012 to be lawful.

In the light of this, the Association of Council Secretaries and Solicitors (ACSeS) sought the opinion of Clive Sheldon QC on this and various other issues arising from the new regulations.

Mr Sheldon’s view is that it is not open to councils to limit the regulation 13(4) recording requirement to ‘key decisions’. However, since an ‘executive decision’ is one made ‘in connection with’ the discharge of an executive function, and ‘in connection with’ could mean either ‘closely’ or ‘remotely’ connected with, Mr Sheldon considered that it would be appropriate for authorities to adopt the former interpretation i.e. ‘closely connected with’.

In his view this would take out purely administrative decisions (e.g. stationery purchase) from the compass of executive decisions since they are only tenuously connected with the discharge of an executive function. However, this still leaves a huge number of other decisions encumbered by this new requirement. ACSeS is therefore seeking an early meeting with Communities and Local Government Officials to discuss options for addressing this and other issues arising from the new regulations.

Other conclusions from Mr Sheldon’s advice are that:

• "the notice that has to be provided 28 clear days before a meeting is held in private needs to be sufficiently specific and detailed so that representations can properly be made to the council as to why the meeting should be held in public. The notice should therefore identify the part(s) of the meeting that the council intends to hold in private, with reasons why;
• the notice of 28 ‘clear days’ means 28 days not including the date of notice and the date of the meeting, but is inclusive of weekend days and public holidays;
• the reference to ‘conflict of interest’ in regulation 13(2) is not confined to ‘pecuniary interests’, but means an actual conflict of interest as at common law; the reference to the head of paid service is most likely deliberate, and that officer is empowered to grant a dispensation to an executive member to be consulted on a matter by an individual (executive member or officer) where s/he has a conflict of interest; and;
• there should be no real impediment to councils making ‘key decisions’ before October 19th 2012, even though required documents may not have been published for 28 clear days before the relevant decision was made. A ‘proper officer’ could reasonably determine that it was ‘impracticable’ for the publication requirements to be satisfied, if the council’s systems to provide such documents and/or make such publication were not in place when the 2012 Regulations came into force."

Whilst there is never a dull moment for local government lawyers, the occasional unglistening second would undoubtedly be welcome as a pit stop.

© Nicholas Dobson[1]

September 2012