ITEM CA14
CABINET – 21 OCTOBER 2008
Local Government and Public Involvement in Health Act 2007 – Changes to Executive Arrangements
Report by Leader of the Council
Introduction
1 Section 11 of the Local Government Act 2000 provided a number of different models of governance and this Council opted for the Leader and Executive model. The legal requirement was (and still is) for the Council to elect a Leader of the Council. The Council then had a choice of the appointment of 2 or more Councillors to the Cabinet to be either by the elected Leader (the ‘strong’ leader model) or by the council (the ‘weak’ leader model). The Council chose the latter.
Changes to Executive Arrangements
2 Part 3 of the Local Government and Public Involvement in Health Act 2007 concerns the Executive Arrangements for England. Section 62 of the Act introduces a so-called “new style” leader and cabinet executive, provides for the continuance of directly elected mayor and cabinet executive arrangements but abolishes the mayor and council manager style of executive.
3 In the case of a local authority operating whole council elections (as Oxfordshire County Council does), the leader (“the executive leader”) is to be a councillor elected by the authority for a four-year term. The leader appoints two or more councillors to form the executive which has a maximum number of 10 (i.e. the ‘strong’ leader model).
4 Section 64 of the 2007 Act deals with the process for changing governance arrangements and inserts new Sections 33A to 0 into the Local Government Act 2000.
5 Where the local authority is operating an old style ‘weak’ leader and executive, then Schedule 4 directs that the Council must make a change in its governance arrangements.
6 All leaders are required to be ‘strong’ leaders and must – (a) determine the size of the Cabinet; (b) appoint members of the Cabinet; (c) allocate all executive functions; and (d) have a four-year term of office.
7 Section 67 of the 2007 Act inserts Section 44A to H in the 2000 Act, providing (in effect) for the executive leader to hold office for four years but section 44C provides that executive arrangements may include provision for the council to remove the leader by resolution. Details of grounds for removal are still awaited.
8 While the elected Leader has the power to appoint, the legislation is silent with regard to termination of appointment and it may well be that the Secretary of State will issue further directions on this.
9 The local authority must pass a resolution to make the change in governance arrangements which should take effect on the third day after the next local government elections in May 2009 (now subject to a Parliamentary Order to be moved to June). The resolution must be passed at a meeting that is specially convened for the purpose no later than 31 December 2008 (‘permitted resolution period’). A further resolution to change the governance arrangements again can be passed in any fourth year thereafter.
10 There is provision for the Secretary of State to make an order to provide that a permitted resolution period is to end later than the last day of that specified in the table, i.e. 31 December 2008 for this council.
11 The Group Leaders considered this at their meeting on 15 September, when it was agreed that, subject to clarification on the requirement to consult, Cabinet should debate the subject and make a recommendation to Council.
12 Subsequent legal advice was that public consultation was not mandatory and, on the basis that when the current arrangements were introduced they were the most extensive changes to local authority executive arrangements for over 100 years, whereas either of the new options (‘strong’ leader or elected mayor) are already in existence elsewhere in England, a repetition of the previous public consultation was not necessary.
13 It is my view that a Leader is as strong as the support he has from the members who elect him. In the case of a council under single party control, this will be his own group. In the case of a hung council, the strength of the Leader will depend on his ability to secure support from beyond his own group. In a democracy, no constitutional construction can protect a Leader who loses the support of a majority of the council. Indeed, those who view the national political scene at the moment may doubt the wisdom of providing too many difficulties along the path for removing a failing Leader.
14 I am consequently wholly at a loss to understand the need for the changes we are required to make and regretful that we have to convene a Special Council Meeting for the purpose of complying with the government impositions.
Implications for the Council
Delegations to Portfolio Holders
13 Under the provisions of the Act, all executive powers vest in the Leader/Mayor who is responsible for delegating decision making as appropriate (e.g. collective Cabinet decisions, decisions reserved to the Leader, decisions delegated to individual portfolio holders, decisions delegated to other executive decision-making bodies). Executive functions are those that by law must be the responsibility of the executive.
14 The legislation assumes that the new arrangements will give the Leader/Mayor a stronger role in terms of delegation of executive decision making, including the ability to delegate to individual portfolio holders. The Council’s current scheme of delegation works well and I would wish the officers to ensure their continuation within the new framework imposed by the government’s legislation.
15 The Leader/Mayor will also be responsible for fixing the size of the Cabinet (up to 10 in total) and for selecting his/her Cabinet. In a relatively large authority such as the County Council with its diverse operations and a need for strategic and corporate perspectives, I would opt for a Cabinet of 10 as has operated successfully over this council to date.
Budget and Policy Framework
16 The current position is that decisions which fall outside of the budget and policy framework must be referred to full Council for a decision. The new Act does not change this.
17 However, there is a decision for members to take concerning the extent of the budget and policy framework, depending on the approach adopted with regard to delegations to individual portfolio holders.
18 The options for members include: (a) keeping the budget and policy framework as it is; (b) expanding the budget and policy framework – which would limit the decision making powers available to executive committees and individuals; (c) limiting the budget and policy framework – which would enhance the decision making powers available to executive committees and individuals with more matters requiring Council approval 19 The County Council’s current budget and policy framework comprises the following plans and strategies:
(a) Annual Report (b) Children & Young People’s Plan (c) Community Strategy (d) Crime and Disorder Reduction Strategy (e) Local Transport Plan (f) Medium Term Corporate Plan (g) Minerals & Waste Development Plan Documents (h) Structure Plan (i) Youth Justice Plan
20 Examples from other Councils are set out at Annex 1 (download as .doc file).
21 The impact of the above options on the effectiveness of Council business need to be considered in coming to a view on this issue. In my view the current budget and policy framework has served us well and provided a good balance between decisive, effective and prompt decision taking by the Cabinet and full input to major issues by all members of the Council. Definition of Key Decisions and Call-in
22 Members could choose to vary the definition of a key decision as part of the new arrangements. While regulations set the basic parameters for key decisions i.e.-
(a) likely to result in the local authority incurring expenditure which is, or the making of savings which are significant having regard to the local authority’s budget for the service or function to which the decision relates; or
(b) likely to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the local authority
23 The current definition (see Annex 2) could be tightened or relaxed. Some examples of different approaches are also set out in Annex 2.
24 The current arrangements have worked well and I see no need for change.
Delegations to Members
25 There are provisions within the new Act to enable all members to take decisions which relate to their electoral divisions. For executive functions, it is the Leader/ Mayor who has the power to delegate such decision making powers to members. For non executive functions, the power to delegate to individual members rests with the Council.
26 Once in force, these new powers would enable members to take decisions which impact on their divisions with the aim of bringing decision making closer to local people and members fulfilling their role as community champions.
27 Such powers could bring with them the allocation of budgets to councillors either on an individual basis or a locality basis.
28 Some Councils have already moved to a form of local decision making/ participatory budgeting through the introduction of ‘community kitties’.
29 Many members of this council are not enthusiastic about member budgets and have generally set their face against them. This County Council is almost unique among the South East County Councils in not delegating budgets to councillors but, given the current prevailing view, it is my recommendation to await the new Council, post-June 2009 to consider whether there is any appetite for this financial delegation.
Local Choice Functions
30 The legislation provides for a number of functions which are local choice functions. This means that, in relation to these functions, the Council can decide whether to exercise those functions itself or whether to delegate decision making in respect of those functions to any other part of the Council including the Cabinet.
31 The current allocation of local choice functions as agreed by the Council are contained in Section H of the Constitution.
32 Once again, I believe the current arrangements work well; I do not consider it is wise to make rushed changes without proper consultation to meet the government’s imposed timescale; I consider it more appropriate for a new Council to review the constitution after an initial period and I therefore recommend no changes.
Councillor Call for Action
33 As members are aware, the 2007 Act contains new provisions to enable councillors to require a matter to be discussed at an Overview and Scrutiny Committee (Councillor Call for Action). These provisions are not yet in force and guidance is still awaited.
34 There are a number of methods by which members may ask for issues to be addressed, including submitting a Notice of Motion for debate at full Council, asking Cabinet to address a particular issue; requesting a Scrutiny Committee to add an item to its agenda.
35 The Council could implement its own version of a Councillor Call for Action in advance of any legislative provision but it seems to me to be more appropriate to await whatever government guidance may be published.
Proposed Timeline
36 The Act also requires the Council to have approved the changes to its governance arrangements by 31 December 2008. A report will be brought to a special meeting of the Council in due course setting out and seeking formal approval for the changes.
37 The County Council Constitution is currently very prescriptive about the day and time of County Council meetings. Section D Council Procedure Rules, rule 4 specifies:
38 When it was necessary to call an Extraordinary County Council to agree a change in Cabinet membership, it would have been much more convenient for many members to have held a short early evening meeting.
39 Calling a meeting to comply with the Local Government and Public Involvement in Health Act 2007 is also problematic. The easiest solution to meet the government’s requirements and timetable would have been to call a second Council Meeting on the same day as our regular one. However, the requirement that all Council meetings must start at 10:00 am prevents this. Consequently, members will be inconvenienced by having to attend another day time meeting for a short time in order to comply with this legislation. I there propose to invite Council to amend the Constitution to allow Council meetings to be called at such time as the Chairman may determine after consultation with Group Leaders. I further propose the amendment of the requirement that meetings shall be held at County Hall by adding the words “or such other appropriate venue as the Chairman may determine after consultation with Group Leaders” after “be held at County Hall, Oxford”.
Conclusions
40 The 2007 Act raises a number of issues regarding the Council’s governance arrangements which need to be addressed and implemented in time for the Council elected at the local government elections 2009.
41 This report sets out some of the key issues to be decided to be in a position formally to approve changes to our arrangements by 31 December 2008 which is the statutory deadline.
RECOMMENDATIONS
42 Cabinet RECOMMENDS Council to amend Section D Council Procedure Rules rule 4 of the Constitution as follows:
(a) Add the words “or in the case of an extraordinary meeting such other appropriate venue as the Chairman may determine after consultation with Group Leaders” after the first bullet point “be held at County Hall, Oxford” (b) After “at 10:00 am” in the second bullet point, add “or in the case of an extraordinary meeting such other time as the Chairman may determine after consultation with Group Leaders”.
43 With regard to the Local Government and Public Involvement in Health Act 2007, Cabinet RECOMMENDS Council:
(a) To comply with the government’s instruction to adopt the “strong leader” model and to amend the constitution to provide for the Leader of the Council: (i) to be elected by the Council for the full term of the Council; (ii) to determine the size of the Cabinet; (iii) to appoint members of the Cabinet; and (iv) To allocate all executive functions.
(b) To maintain the policy and budget framework as set out in the current constitution.
(c) To note the Leader of the Council’s intention to delegate executive functions to Cabinet Members as they are currently delegated in the Constitution.
(d) Not to delegate any non-executive functions to individual members of the Council.
(e) To maintain the local choice functions as set out in Section H of the Council’s Constitution.
(f) To note that there are a number of methods by which members may ask for issues to be addressed and to await government guidance before considering implementing a process for a Councillor Call for Action.
44 Cabinet believes many members will be irritated and annoyed by the prescriptive nature of this legislation; by the short timescale in which it must be implemented; and by the inconvenience of having to convene a separate Council meeting to debate it and RECOMMENDS Council to ask the Leader of the Council to write to the Secretary of State for Communities and Local Government expressing this view.
Cllr Keith R Mitchell CBE Leader of the County Council October 2008
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