Report re Local Government and Public Involvement in Health Act 2007
REPORT TO CABINET 13 FEBRUARY 2008
REPORT OF THE ASSISTANT CHIEF EXECUTIVE LEGAL AND GOVERNANCE
Local Government and Public Involvement in Health Act 2007 – Role and Function of Standards Committee
1) Purpose of the Report
1.1 To inform Cabinet of the enactment of the Local Government and Public Involvement in Health Act 2007, the issues that are likely to arise and the steps that the Council should take in preparation of the Act coming into force.
2) Background
2.1 In October 2006, the Government published a White Paper – Strong and Prosperous Communities. This paved the way for the introduction of the Local Government and Public Involvement in Health Bill in the House of Commons, in December 2006.
2.2 At its meeting on 8th August 2007, Cabinet considered a report setting out the changes proposed by the White Paper and the then Local Government and Public Involvement in Health Bill and Members were asked to consider the policy issues arising from the White Paper and the Bill, including remodelling of the standards regime.
2.3 The Local Government and Public Involvement in Health Act 2007 received Royal Assent on 30th October 2007 and Part 10 of the Act sets out a number of changes to the roles and functions of the Standards Committee. Much of this part amends Part III of the Local Government Act 2000 relating to ethical standards. The provisions set the framework for the Committee’s new roles but have yet to be brought into force. It is expected that this will be done, once the required Regulations and guidance have been issued, in Spring 2008.
2.4 In addition, in advance of issuing Guidance, the Standards Board for England has issued a “Checklist for Local Authorities in the Run Up to April 2008” (the Checklist), the provisions of which will be referred to throughout this report.
3) Changes to Legislation
3.1 The Local Filter – Sections 185, 187 and 188 of the Act
People wishing to complain that a Member or former Member of the City Council or the 3 Parish and Town Councils in the City has, or may have, failed to comply with the Code of Conduct will do so by complaining to the Standards Committee. The Committee will consider any complaints and can come to one of three decisions:
· refer the complaint to the Monitoring Officer for investigation or to be dealt with in another way. The Monitoring Officer may refer the matter back to the Committee in the circumstances that will be prescribed in regulations.
· refer the complaint to the Standards Board for England, if it is not appropriate for the Monitoring Officer to deal with the complaint. The Standards Board may in turn decide to refer the case to one of its ethical standards officers, decide that no action should be taken or refer the allegation back to the Committee.
· decide that no action should be taken in respect of the complaint, in which case the complainant will have the opportunity to ask, within 30 days, for the decision to be reviewed. The review must take place within three months of the request. The Standards Board for England Checklist indicates that, to avoid perceptions of bias or pre-determination, Members who carry out a local assessment decision should not be involved in a review of the decision should one be requested.
Subject to certain restrictions, which will be prescribed by regulations, the Committee must inform the Member about whom a complaint has been made when it receives a complaint, makes a decision about the complaint or receives a request to review a decision to take no further action regarding a complaint.
3.2 Section 185 also provides that a Standards Committee has discretion, where the subject of the allegation is no longer a Member or co-opted Member of the authority in question and has moved to another relevant authority, to refer the allegation to the Monitoring Officer of the Member’s current local authority.
3.3 The Standards Board for England may issue guidance and give directions to standards committees with respect to the exercise of these procedures, including the ability to suspend the committee’s power to carry out initial assessments of allegations.
3.4 The Act requires the appointed Chair of the Standards Committee to be one of the Independent Members of the Committee. This is already required by the Council’s Constitution, which also requires the appointment of a Deputy Chair from the Independent Members of the Committee. Section 188 enables a Standards Committee to appoint one or more sub-committees to undertake any of it functions and the Standards Board for England are recommending, as a minimum, two separate sub-committees: one for taking initial assessment decisions and one for taking decisions on review. Subject to regulations, they are also recommending that each sub-committee has an Independent Chair.
3.5 Subject to any new regulations, with the exception of the requirement to have an Independent Chair, the composition of a Standards Committee will not be altered by the new legislation when it comes into force and the Council’s Standards Committee will remain compliant. However, in the Checklist, the Standards Board for England recommends, for effective practice, a minimum of 6 Members (3 elected members and 3 independent members) and 2 or possibly 3 parish or town council members. To follow this best practice guidance, which is likely to find its way into the statutory guidance, would require a change to the existing composition of the Standards Committee, which currently comprises 4 Members of the City Council, 1 Parish Councillor and 2 independent members. In practical terms a change in composition may be required in order to meet the requirement to have a fresh group of Standards Committee members hear applications for reconsideration.
3.6 Information to be provided to Standards Board – Section 186
The Standards Board for England will collect information from the Committee, in the form of periodic returns, on how it is performing the local filter and its other functions. The authority must also comply with any other request for information about its Standards Committee or the Monitoring Officer by such date as the Standards Board may specify.
3.7 References to Adjudication Panel – Section 195
In cases where the Committee is making a local determination following the investigation of a complaint, it will be able to refer the matter directly to the Adjudication Panel for England if it considers that its sanctions are not sufficient to deal with it. Further details are to be specified in regulations.
3.8 The Code of Conduct - Section 183
The Act amends the Local Government Act 2000 to enable the Members’ Code of Conduct to cover conduct in a private capacity where that conduct would constitute a criminal offence. The provision in the Code of Conduct that Members will have breached the Code if they intimidate a complainant or witness in relation to an allegation of a breach of the Code, bring their office or authority into disrepute or improperly secure or attempt to secure an advantage or disadvantage for themselves or another person in their private life if the conduct constitutes a criminal offence for which they have been convicted will, therefore, have effect from the time when this part of the Act is brought into force. Councils will not have to amend their Codes of Conduct as a result but Members may have to reconfirm that they will abide by the Code of Conduct within a prescribed period set out by the Secretary of State or they will cease to be a Member of the Council.
3.9 Politically restricted posts
The Local Government and Housing Act 1989 provides that a person may not become a Member of a local authority if he or she holds a politically restricted post within that Authority. It also provides that a person in a politically restricted post may only undertake limited political activities. Politically restricted posts are Chief Officers, Deputy Chief Officers, officers remunerated above a particular level or officers who regularly give advice at Council meetings or are responsible for providing information to journalists and broadcasters.
3.10 Officers, other than Chief Officers and Deputy Chief Officers, who hold politically restricted posts can apply for an exemption from this political restriction. Currently the granting and supervision of exemptions is the responsibility of the Independent Adjudicator appointed by the Government. However, the Local Government and Public Involvement in Health Act 2007 makes this a function of the Standards Committee. The Committee will therefore hear applications that a particular post should be removed from the list of posts that are politically restricted. It is not expected that this will result in significant additional work for the Committee as it is likely there will be very few applications.
4) Change Proposals
4.1 As a result of the above, the following changes will be required to the Constitution:
i. Replace “and a representative of the Parish and Town Councils” with “and two representatives of the Parish and Town Councils” in Article 9.02 (a).
ii. Change the heading of Article 9.02 (d) from “Parish Council Sub-Committee” to “Sub-Committees” and insert “The Standards Committee may also have any other sub-committees as it sees fit. ” at the end of that Article.
iii. Amend Article 9.03 so that Article 9.03 (j) becomes Article 9.03 (n) and the following clauses are inserted as Article 9.03 (j), (k), (l) and (m):
(j) To determine local assessment criteria having regard to the Standards Board for England Guidance
(k) Carrying out initial assessment of complaints in accordance with legislation
(l) Providing any information required by the Standards Board for England in accordance with legislation
(m) To determine applications for exemption from political restriction under the Local Government and Housing Act 1989.
iv. Amend Part 5, Appendix F which quotes section 2 of the Local Government and Housing Act 1989 to reflect the amended wording of section 2.
Members are asked to authorise the Assistant Chief Executive Legal and Governance to make these changes as and when they are required by the coming into force of the legislation.
4.2 Further changes may be required when the regulations and statutory guidance have been issued and Members are asked to delegate authority to the Assistant Chief Executive Legal and Governance to make any changes to the Constitution that are required by the legislation.
5) Impact of Changes
5.1 Financial Implications
If complaints remain at the current level any additional cost of these changes will be met from existing budgets. However, should the number of complaints increase then further consideration will be required.
5.2 Legal Implications
As detailed in the report the changes to the current regime and consequential changes required to the Council’s Constitution are required by the Local Government and Public Involvement in Health Act 2007 and associated regulations and statutory guidance.
5.3 Human Resources Implications
If complaints remain at the current level these will be managed without the need to increase staffing levels. However, should the number of complaints increase then further consideration will be required.
5.4 Other Implications
There are no known human rights, equal opportunities, environment and sustainability, economic impact, community safety or property implications or implications for Area Panels.
6) Recommendations
Cabinet is asked to:
(a) note the changes to be brought about by Part 10 of the Local Government and Public Involvement in Health Act 2007.
(b) authorise the Assistant Chief Executive to make the following amendments to the Council’s Constitution, as outlined in paragraph 4.1 as soon as Part 10 of the Local Government and Public Involvement in Health Act 2007 comes into force:
i. Replace “and a representative of the Parish and Town Councils” with “and two representatives of the Parish and Town Councils” in Article 9.02 (a).
ii. Change the heading of Article 9.02 (d) from “Parish Council Sub-Committee” to “Sub-Committees” and insert “The Standards Committee may also have any other sub-committees as it sees fit.” at the end of that Article.
iii. Amend Article 9.03 so that Article 9.03 (j) becomes Article 9.03 (n) and the following clauses are inserted as Article 9.03 (j), (k), (l) and (m):
(j) To determine local assessment criteria having regard to the Standards Board for England Guidance
(k) Carrying out initial assessment of complaints in accordance with legislation
(l) Providing any information required by the Standards Board for England in accordance with legislation
(m) To determine applications for exemption from political restriction under the Local Government and Housing Act 1989.
iv. Amend Part 5, Appendix F which quotes section 2 of the Local Government and Housing Act 1989 to reflect the amended wording of section 2.
(c) delegate to the Assistant Chief Executive Legal and Governance power to make any further amendments to the Constitution that become necessary because of Part 10 of the Local Government and Public Involvement in Health Act 2007 and regulations issued thereunder.
(d) delegate to the Assistant Chief Executive Legal and Governance power to make any amendments necessary to any other documentation to ensure that it is consistent with the amended Constitution.
Liz Bashforth
Assistant Chief Executive Legal and Governance