ITEM ST6E
STANDARDS COMMITTEE – 4 MARCH 200 9
REQUEST FOR EXEMPTION FROM POLITICAL RESTRICTIONS
Report by Head of Legal & Democratic Services & Monitoring Officer
Introduction
1. Part I of The Local Government and Housing Act 1989 (‘the Act’) introduced restrictions on the political activities of local authority employees.
2. The purpose is to ensure that local authority employees who hold posts involving duties of a politically sensitive nature cannot, at the same time, become a member of another principal local authority. This policy stems from the long established tradition that local government officers involved in advising elected members of their authority should be seen to observe a policy of political neutrality.
3. This policy is important for two main reasons:
(a) Members of a local authority should be able to receive impartial advice from its officers; and/or
(b) Members, and those who have elected them, should have complete confidence that their officers will act impartially in implementing the Council’s policies.
4. Section 1 of the Act disqualifies local authority employees from becoming a member of a local authority (by election or otherwise) if they hold a politically restricted post under that authority or any other local authority in Great Britain.
5. Section 2 of the Act sets out the persons who are to be regarded as holding politically restricted posts under a local authority. These include the head of the paid service, chief officers (statutory and non-statutory), deputy chief officers, monitoring officer, political assistants, and others whose:
(a) annual rate of remuneration exceeds an amount specified in Regulations by the Secretary of State (currently spinal column point 44, which at Oxfordshire County Council is £36,730 p.a.); or
(b) duties involve giving advice on a regular basis to the authority, to any committee or sub-committee of the authority, or to the executive of the authority or any member of that executive; and/or
(c) duties involve speaking on behalf of the authority on a regular basis to journalists or broadcasters.
6. In order to allow officers to pursue their personal political aspirations it is possible for an officer to apply for his post to be exempt from political restriction under Section 3 of the Act.
Consultation on Political Restrictions
7. In 2004 a consultation paper was issued by the Office of the Deputy Prime Minister (ODPM) upon a review of political restrictions on local government employees. The review was prompted by a European Court ruling in 1998 that political restrictions are not incompatible with the right to freedom of expression under the European Convention on Human Rights, and a commitment to such a review given by the Government in the course of passage of the Local Government Act 2000 through Parliament.
8. Further to the consultation the Government amended the law under the Local Government and Public Health Act 2007.
The Current Position
9. The Local Government and Public Involvement in Health Act 2007 came into force on 1 April 2008. Section 202 of the Act introduced a new section 3A into the 1989 Act under which the responsibility for consideration of applications for exemption from political restriction is removed from the Independent Adjudicator and given to the Standards Committee.
10. The Council is required by statute to have and maintain a list of all posts that are politically restricted. The Committee must consider applications relating to posts that are included the list maintained by the Council and it is the post holder who makes the application.
11. The Committee may choose to consider applications for exemption from any person even if they do not hold the post to which the application relates, for example a person who has been offered a job with Oxfordshire County Council but who is a member of another authority.
12. The Committee also has the discretion to consider any post that is not on the list and determine that it should be included whether or not an application has been received. Again, it is not clear in what circumstances the Committee would wish to exercise this discretion if at all.
Consideration of Applications
13. In considering any application the Committee must give priority to an application from a post holder who certifies in his application that the application is submitted for the purpose of enabling him to be a candidate in an election. The level of priority the Committee afford the application is dependent upon the time available to the Committee before the election in which the post holder wishes to stand.
14. To decide whether to allow the application for exemption the Committee must be satisfied that the duties of the post do not fall within:
- giving advice on a regular basis to the authority itself, to any committee or sub-committee of the authority or to any joint committee on which the authority are represented; and/or
- speaking on behalf of the authority on a regular basis to journalists or broadcasters.
15. There is no guidance on what constitutes the giving of advice but it is likely to be more than simply presenting reports to the Council or its committees. Therefore upon an application received, the Committee may consider that officers who occasionally attend a committee in order to present reports where they are not required to provide advice may be exempted.
16. If the Committee finds that the duties of the post holder do not fall within the two categories mentioned above it must direct:
(i) that, for so long a period as the Committee think appropriate the post is not to be regarded as a politically restricted post; and
(ii) that the post is not to be specified in the list maintained by the Council or (as the case may be) it is to be removed from that list.
17. When considering the length of the exemption the Committee may wish to consider whether the exemption should apply to the applicant only; to all future post holders; to a specific election; until the job description is amended; or until a fixed date in the future.
18. Before the Committee can determine an application by a person other than the post holder; or posts considered at the Committee’s discretion the Committee must be satisfied that:
(i) the duties of the post do not fall into the categories mentioned at paragraph 21 above; and
(ii) the post is neither:-
- in any list maintained by the Council; and
- of a description specified in any regulations that may be made by the Secretary of State.
19. When considering applications the Committee must have regard to any general advice given by the Secretary of State. As at the date of this report there is no guidance issued.
Reason Why the Annex is Exempt
20. The request (including name, job title, salary details, etc.) is attached at Annex 1 to this report. The public should therefore be excluded during consideration of Annex 1 because its discussion in public would be likely to lead to the disclosure to members of the public present of information in the following categories prescribed by Part I of Schedule 12A to the Local Government Act 1972 (as amended):
1 - Information relating to any individual; and
2 - Information which is likely to reveal the identity of an individual
and since it is considered that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information, in that disclosing the information would breach the Data Protection principles in relation to an individual’s personal information and the Council’s legal obligation to safeguard that information.
The local authority "Certificate of Opinion"
21. Under the previous process the local authority produced a "certificate of opinion" which the legislation required should accompany an application to the Independent Adjudicator. One issue which often delayed the application process was inaccurate wording in the “certificate” and the Independent Adjudicator produced in 2002 a model certificate to act as a guideline for local authorities. It is necessary for the certificate of opinion to state "whether or not, in their opinion, the duties of the post fall within subsection (3)" of the 1989 Act. It is clear from the wording of the Act that "their opinion" means the opinion of the local authority.
22. For local authorities which are operating executive arrangements under the Local Government Act 2000, the function of issuing a certificate of opinion is the responsibility of the authority's executive and can be exercised in accordance with the provisions of the 2000 Act, including by individual members of the executive and officers.
23. The signing of the certificate of opinion should be delegated to an appropriate officer. By virtue of section 234 of the 1972 Act, the certificate of opinion may be signed on behalf of the authority by the proper officer of the authority. In the Independent Adjudicator’s view, the authority's Monitoring Officer would be a particularly appropriate officer to discharge this responsibility.
RECOMMENDATION
24. The Committee is RECOMMENDED to:
(a) note the report and the Committee’s responsibility;
(b) consider the request to exempt a post from political restrictions imposed by section 1 of the Local Government and Housing Act 1989 (Annex 1); and
(c) follow the Independent Adjudicator’s advice and recommend to the Cabinet that it formally delegates the authority to sign the Certificate of Opinion to the Monitoring Officer.
P G CLARK Head of Legal & Democratic Services & Monitoring Officer
Background Papers: Nil
Contact Officer: Peter Clark, Head of Legal & Democratic services & Monitoring Officer Tel: (01865) 323907
February 2009
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