The Association of Council Secretaries and Solicitors is to seek an urgent meeting with Government officials amid growing concern over the impact of new regulations aimed at introducing greater transparency in local government decision-making.
The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (S.I. 2012 No. 2089 came into effect on 10 September.
The regulations – unveiled by Communities Secretary Eric Pickles in August – include a presumption that all executive meetings will be held in public "unless a narrowly defined legal exception applies". There are also provisions covering new legal rights for 'citizen bloggers' as well as enhanced rights for individual councillors and scrutiny members.
The main concern relates to a requirement in regulation 13(4) for 'executive decisions' taken by officers to be recorded in a written statement. The previous regulation only applied to ‘key decisions’.
Amid fears that the new wording would create a major burden for local authorities, ACSeS sought an opinion from Clive Sheldon QC of 11KBW.
As ACSeS’ communications officer Nicholas Dobson reports on his Local Government Lawyer blog, the silk’s view was that it was 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’,” Dobson explains.
The QC from 11KBW expressed the view this would mean purely administrative decisions would not be covered as they would be 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,” Dobson writes.
ACSeS is therefore seeking a meeting with officials from the Department of Communities and Local Government.
The Association's First Vice-President Mark Hynes, Director of Law at Lambeth, said: “Whilst ACSeS fully supports and encourages local authority transparency, this new obligation for officers to make a detailed public record of all executive decisions – even minor ones – will tie local government up in the very red tape that the Government is so understandably keen to cut.
“The Government must therefore take urgent steps to remedy this. Restoring the previous position i.e. to apply the requirement as before only to key decisions would in our view strike an appropriate and proportionate balance. In this way the public would be kept in the loop about significant decisions without being swamped by minutiae.”
Hynes added: “It is therefore vital that suitable amendments are made urgently to these regulations so the public can see the wood for the trees and local government operations are not inefficiently mired in bureaucracy.”
Geoff Wild, Director of Governance and Law at Kent County Council, has meanwhile heavily criticised the DCLG in an article on Local Government Lawyer for failing to consult on the draft regulations before they came into force.
He also described the Department’s response to concerns expressed by the District Councils Network – in which it claimed that the DCN had got “the wrong end of the stick” – as “astonishing”.
The DCLG response said: “It looks like they [the network] have confused ‘executive decisions’ (i.e. a decision of the Cabinet) with decisions of council officers, i.e. signing off stationery orders etc. They are not an executive decision for the purposes of this regulation.”
Commenting that “if this was not so tragic, it would be hilarious”, Wild said: “This statement flies completely in the face of the wording of the regulations.”
After analysing the meaning of ‘executive decision’ and ‘decision-maker’, he said: “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?”
See also: Opaque transparency by Nicholas Dobson