Council publishes s.5A report on prima facie breaches but monitoring officer concludes they were “minor and inadvertent”

The report – written by Nigel Inniss, Assistant Director – Governance, Legal and Assurance (Monitoring Officer) and delivered to the authority’s Cabinet for a meeting on 17 September – addressed two prima facie breaches of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations, 2012 [2012 Regulations].

Inniss said the first breach of the 2012 Regulations relates to Regulation 13 (1), which says: “As soon as reasonably practicable after an individual member has made an executive decision, that member must produce or instruct the proper officer to produce a written statement of that executive decision …”

The s.5A report reveals that a notice of executive decision was published on the council’s website on 26 June 2026 recording a decision made by the Leader on 18 June 2026 “to instruct officers of the Council to issue the claim for judicial review of the Secretary of State’s decision regarding Local Government Re-organisation of Suffolk County Council before the deadline of 25 June (the date by which any such proceedings may be issued)”.

Inniss wrote: “Although there is a lack of case law on what is deemed to be ‘as soon as reasonably practicable’, and no actual guidance on timings within which to publish any such decision notice, on balance, it could be argued that the delay between the Executive Decision being made on 18 June 2026 and the publication of the notice of that decision on 26 June 2026, was not ‘reasonably practicable’ ; the Monitoring Officer considers that there was a breach to answer in this respect albeit a minor and inadvertent one.”

The second prima facie breach of the 2012 Regulations related to a requirement in Regulation 17 for additional rights of access to documents for members of overview and scrutiny committees.

A member of the Scrutiny Committee had requested certain documents relating to the council’s claim for judicial review.

Inniss said that some of those documents fell outside the Regulation 17 right of access by virtue of Regulation 17(3)(a), which reads:

(3) No member of an overview and scrutiny committee is entitled to a copy-

(a) of any such document or part of a document as contains exempt or confidential unless that information is relevant to;

(i) an action or decision that that member is reviewing or scrutinising or;

(ii) any review contained in any programme of work of such a committee or sub-committee of such a committee … …”

“However, that exemption probably did not apply to the judicial review claim itself,” the monitoring officer wrote.

“The relevant material was ultimately provided, but outside the statutory 10-day limit. Although the fact that there were some potentially difficult issues around whether aspects of the claim (which referred to the Government’s pre-action response) fell within the confidentiality exemption, and this helps to explain why there was a relatively short delay; the Monitoring Officer considers that there was a breach to answer in this respect, albeit a minor and inadvertent one.”

Inniss went on to make the following observations (having regard to s.5A (8), which requires Cabinet to prepare a report specifying what action (if any) it has taken, or proposes to take, in response to the report, and why):

1. He was of the opinion regarding Regulation 13(1) that this was “a one-off error, which occurred when matters were having to be dealt with on an urgent basis, so that no further action was considered necessary”; and
2. He was of the opinion that regarding both Regulations 13(1) and 17(2) that greater familiarity with the statutory requirements around the process for executive decision-making will be improved by way of training and undertaking work with the Council’s cross-party Constitution Working Party.

The monitoring officer added: “In conclusion, both cited breaches of the Regulations have suffered corrective action in this regard. Nonetheless, the Council’s cross-party Constitution Working Party can consider the wider implications of the Council’s decision-making process, requiring possible changes to the Council’s Constitution, and if so desired, any such proposed changes made by the Council’s cross-party Constitution Working Party can be presented to a future meeting of County Council.”

Earlier this month the Secretary of State for Housing, Communities and Local Government, Angela Rayner, announced that the Government’s decision on reorganisation would – along with those for three other areas – be withdrawn. Decisions for 14 other areas were also paused ahead of a review.

This followed “updated and privileged legal advice”.