Doppel und Spitze!

February 24, 2011

The Localism Bill has the potential to blur the division between the council leader’s role as political leader and the chief executive's role as head of the officer management structure and impartial senior corporate advisor to the authority, writes Nicholas Dobson.

Doppelspitze might sound like something from a World War 2 boys’ comic. The sort of thing a Luftwaffe pilot might have been given to say (along with donner und blitzen) as he came under RAF attack. But the term has entered the local government lexicon from a rather different source.

For it is Eric Pickles, Secretary of State for Communities and Local Government, we have to thank for this linguistic development. Speaking to the Municipal Journal in July 2010, he expressed the view that the dual structure of executive leader and chief executive is unsustainable. Drawing inspiration from the abolition in the 1990s by a German local authority of the dual leadership of mayor and chief executive (known in Germany as doppelspitze), Pickles said there would need to be fewer chief executives and more leaders taking on this role. For, he went on, whilst a “lot of chief executives are very nice people whom one can take home to meet one’s mum”, he did not see a job for them since the role could be absorbed into that of the leader. As Pickles told the Local Government Association Conference on 6 July 2010: “Where you have Chief Executives and elected leaders responsible for the same thing. It's both expensive and pointless.”

Governance changes

And so it is apparently coming to pass in the Localism Bill, which was introduced into Parliament on 13 December 2010. Chapter 3 of Part 1 of the Bill is a modest, innocent-looking, three-clause measure; with clause 10 handling new arrangements for English local authority governance, clause 11 covering amendments and clause 12 charting transitional provisions. But the devil is in the detail and on detail it does not disappoint. For clause 10 in particular introduces in Schedule 2 to the Bill a new and substantial Part 1A of, and Schedule A1 to, the Local Government Act 2000. And that does some serious detail.

Mayors by Order

The government had already signalled its commitment to creating directly elected mayors by statutory order in the 12 English cities of: Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle upon Tyne, Nottingham, Sheffield and Wakefield. This is because it believes that mayors provide local citizens with “a powerful local leader and figure head for municipal government” so as better to “deliver local economic growth, boost local democratic engagement and enhance the prestige of a city”. So to make this happen a new section 9N appears in a new Part 1A of the Local Government Act 2000. This enables the Secretary of State to provide by order that a particular local authority on a specified date must cease operating its existing form of governance or executive and instead begin operating a mayor and cabinet executive.

For a leader and cabinet executive, this is to work by creating a shadow mayor for the leader (deputy leader if there is a vacancy) or a specified councillor in other cases. This is subject to confirmation by referendum. Shadow mayors (who hold office pending a referendum as to whether the authority should continue to operate a mayor and cabinet executive) are treated as elected mayors for most purposes, subject to exceptions in section 9NA. But although, as mentioned, the public will be given the opportunity to express its will on whether or not the mayor and cabinet executive should continue, clearly there is a statutory and psychological impetus in favour of the elected mayor who is installed (albeit in ‘shadow’) at the pleasure of the Secretary of State.

Mayoral chief executives

But whilst (per proposed sections 9HA and 9HB of the 2000 Act) an elected mayor may propose to the authority that he or she becomes its ‘most senior officer’ and will become so unless the council rejects the proposal by a two-thirds majority, the power becomes a duty under section 9HC for those authorities operating a mayor and cabinet executive in the light of a referendum following a section 9N order. For this provides that these authorities must if they have not already done so start to operate ‘mayoral management arrangements’ within a reasonable period after the first elected mayor election held post referendum, or in any event, within the first term of office of the mayor elected at that election.

Per section 9HA(1), there are two core elements to mayoral management arrangements, one on structure (section 9HA(1)(a)) and the other on statutory reporting (section 9HA(1)(b)). The structural arrangements have the following three ingredients: (i) that the elected mayor is the authority’s most senior officer; (ii) that the head of paid service reports to the elected mayor; and (iii) that the elected mayor holds office on such reasonable terms and conditions, including as to remuneration, as the local authority thinks fit. Nevertheless, (per section 9HA(4)) an elected mayor is not in any event an employee of the local authority.

As to the head of paid service role generally, there is a dearth of specific statutory provision other than in section 4 of the Local Government and Housing Act 1989. This requires every authority to designate one of its officers accordingly and to provide that officer with sufficient staff, accommodation and other resources. This post is often in practice styled ‘chief executive’ although some authorities alternatively term it ‘managing director’. Others again simply designate one of their current chief officers as head of paid service, prima inter pares.

The core duty of the head of paid service under section 4(3) of the 1989 Act is to report to each member of the authority when he or she considers it appropriate on any proposals concerning:

(a) the manner in which the discharge by the authority of their different functions is co-ordinated;

(b) the number and grades of staff required by the authority for the discharge of their functions;

(d) the appointment and proper management of the authority's staff.

The authority must then consider any such report at a meeting held not more than three months after copies of the report are first sent to authority members. These provisions can be found in section 4(2) to (6) of the 1989 Act.

In the Localism Bill, the second element of mayoral management (reporting) is dealt with in new section 9HA(1)(b). This provides for the mayor to be able to issue reports setting out his or her plans in respect of one of the matters in section 9HA(3) which is in substantially similar terms to section 4(3) of the 1989 Act set out above.

But whether the mayor becomes ‘chief executive’ by virtue of a section 9HA proposal or by reason of section 9HC following a section 9N referendum, this in any event results in the mayor’s becoming the authority’s ‘most senior officer’ to whom the head of paid service reports.

Potential corporate governance fault lines

In the most effective local authorities there is synergy between the two top figures in the council at both political and management levels. While there is a certain systemic fluidity in both roles, depending upon the personality and attributes of each incumbent, the most successful players agree operating lines between them and add value accordingly.

But common to all political leader/chief executive relationships is the council leader’s role as political leader and that of the chief executive as head of the officer management structure and impartial senior corporate advisor to the authority. The proposals in the Bill blur this somewhat, with the mayoral chief executive becoming the ‘most senior officer’ and the head of paid service reporting to the mayor. This direct line management arrangement where the head of paid service is organisationally junior to the mayor clearly weakens the head’s position. This creates some potential corporate government weaknesses which authorities will wish to guard against.

Not least amongst these is the need for robust arrangements to enable truth to continue to be spoken unto power. Section 9HE will of course require an authority making mayoral management arrangements to designate one of its officers (other than the elected mayor) “to provide guidance and support” to authority members and (similar to the monitoring officer) this officer must be provided with sufficient staff, accommodation and other facilities to enable this role to be adequately discharged. However, an elected mayor will be a powerful figure, positioned, as he or she will be, at the top of the authority in both organisational and political terms and therefore carrying significantly more institutional weight than current council leaders. Given this impetus, the three top corporate governance officers (i.e. head of paid service, monitoring officer and chief finance officer) will need to have the capacity to be particularly tough-minded and resilient where necessary if they are to tell it like it is, when like it is is what needs to be told.

For there will inevitably be significant organisational, cultural and political weight behind the mayor and many officers may well believe their career prospects (not to say livelihoods) to be dependent on toeing the mayoral line rather than speaking up for what may well be right but which may equally be unfairly reviled by those with power or influence as ‘namby-pambyish’ advice. At least under current arrangements there is some parity of standing (albeit in different contexts) between leader and head of paid service. So, at present, if the chief executive supports the monitoring and chief finance officers in relation to any serious legal or other corporate dysfunction, this does give the authority, its members and the public they serve valuable protection in terms of reputation, avoidance of potential legal challenge and assurance as to sound stewardship of public resources.

Local government has proved itself to be pragmatic and adaptable over the years and will therefore no doubt make mayoral management work effectively in most areas. However, power can often be a strong intoxicant and the mayoral chief executive model (with its heady cocktail of combined political and institutional power) is specifically designed to give mayors all they need to make things happen for what they will see as the good of their areas. But as Spider Man’s uncle would no doubt counsel: “with great power comes great responsibility”. Wiser politicians have always recognised this and make sure they take advice before wielding the wand of power. Unfortunately, however, not every politician is always wise. And there are examples of headstrong political leaders who have gone ahead in the teeth of clear contrary legal advice to the detriment of both themselves and their authorities.

So it will be important to ensure that robust systems are put in place from the outset (when the mayor is newly appointed and therefore more likely to be in listening mode) to make sure that major decisions are taken in the light of proper corporate and professional advice. This is certainly not to tie the hands of the mayor with pointless bureaucracy. But is to serve two key purposes: (a) to make sure that decisions are safe and sound in the public interest and (b) to watch the backs of both mayor and authority. For the sager species of politician will welcome this, having long ago learned the lesson of Icarus about pride preceding a fall.

Despite the reporting and systemic arrangements mentioned above there will need to remain clear divisions of roles and responsibility between the mayor on the one hand concerning politico/strategic issues and the head of paid service on the other regarding management of council staff. For whilst the mayoral management arrangements as currently framed give mayoral chief executives reporting facilities similar to those currently available to heads of paid service, in practice the arts of political leadership and those of staff management are very different. Skilled practitioners on each side therefore cross the boundary at their peril. For other considerations apart, employment and equalities law are minefields even for experienced managers. Prudent mayoral chief executives will therefore wish to leave staff management to those trained in this area just as effective officers will leave politics to the politicos, keeping a friendly but professional distance from areas which might otherwise call into question their professional independence.

Just as the British Constitution is mostly unwritten and relies to a large extent on convention, so the art of the effective paid service head goes far beyond the slim requirements of section 4 of the 1989 Act. The Guidance to English Authorities on the once ‘New Council Constitutions’ captures some of the elements of the present chief executive role. These include overall corporate management and operational responsibility, the provision of professional advice to all parties in the decision-making process and representation of the authority on partnership and external bodies. Whilst there may well also be a co-ordinate role for a mayoral chief executive on partnerships and external bodies, the role of the present head of paid service as a politically impartial member of the corporate governance ‘triumvirate’ will be equally important albeit for different reasons.

All change

Change is an inevitable and healthy part of life since only the dead lie still. Local government should therefore not resist change for change’s sake or because it upsets personal career plans. It is always worth bearing in mind that local government is there to serve the public and not its practitioners. However, it is equally important, for change to be effected in the same way. The best authorities will make sure they are aware of potential danger points when installing new organisational systems and will ensure that sufficient checks, balances and safeguards are worked in to ensure the continuing robust health of the local body politic. For the separation of top level political and management powers looks set to become much less clearly defined.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.