ACSeS welcomes general power but fires warning on standards

The Association of Council Secretaries and Solicitors has welcomed the proposals for a new general power of competence contained in the Localism Bill, which was published last month.

It acknowledged that whilst current well-being provisions were broadly drafted, confidence in well-being amongst large parts of local government had “ebbed considerably” following the June 2009 judgment of the Court of Appeal in the LAML case.

In a statement, the Association said it accepted that the proposed new competence power inevitably contained limitations, “the effect of which may take some while to bed down as they are tested in practice”.

But it added that the specific drafting breadth of the competence power looked set to provide authorities “with the confidence to find new ways of making things happen more effectively and for less across the country”.

On other key parts of the Bill, ACSeS commented:

• Predetermination: the provisions seemed essentially to reflect the current caselaw position. “The courts have in fact matured the law on predetermination into a commonsense acknowledgment of the democratic role of councillors. So, as now, specific evidence of a closed-mind is required to justify a claim of unlawful determination. For (as the Bill indicates) predetermination will not be established ‘just because’ the local authority decision-maker had previously indicated a view on the matter”
• Standards: The association said it welcomed any simplification and streamlining of the present regime, but felt that the Bill’s conduct proposals were “so permissive as to be practically ineffective”. ACSeS therefore recommended a national code of local government conduct (similar to that which existed before the arrival of the present standards regime) and the enshrinement in statutory order of the principles of public life. It added that a unified code and principles applicable to all councillors are both necessary and desirable if the generally high reputation of local government is to be maintained
• Governance: ACSeS said it noted the radical governance changes proposed – in particular the provisions for an elected mayor effectively to become an authority’s ‘most senior officer’ and the power proposed for the Secretary of State by statutory order to enable relevant local authorities to confer by resolution a head of paid service function upon their elected mayor. The association acknowledged that in these circumstances an authority would be under a duty to designate one of its officers “to provide guidance and support to members of the authority”, but said it would still be crucial for such authorities to ensure robust corporate governance arrangements. “For, as in the private sector where a functional separation between chairman and chief executive is often seen as offering best corporate governance practice, where these roles are effectively to be conflated within certain local authorities, it will be important to ensure that such authorities are (and are seen to be) operating with due regard to their fiduciary responsibilities.”

ACSeS President Susan Tovey said its members would be studying all the provisions of the Bill very carefully and helping their authorities to get to grips with it. “The association will also be making national level contributions to the debate on the Bill so that the measure that ultimately reaches the statute book is as well-drafted and workable as possible.”

Tovey, who is head of legal and democratic services at Test Valley Borough Council, added: “ACSeS does recognise the policy sea-change represented by the Bill and our members will be energetic in their authorities and in national policy forums in creating the practical structures necessary to give life to the measures in the Bill. The Association therefore looks forward to road-testing these and to finding creative ways of making new things happen in the current challenging fiscal environment.”