Report on the Local Government Bill (NIA 28/11-15)
Date: 20 February 2014
Reference: NIA 139/11-15
Mandate Number: Mandate 2011/15 Sixth Report
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1. This report sets out the Committee for the Environment’s consideration of the Local Government Bill.
2. The Bill consists of 128 clauses, 16 Parts and 12 Schedules. The Bill will establish a new framework for the reorganisation of local government and will impact on every aspect of the operation of councils, including how decisions are made, how positions of responsibility on a council are shared across the political parties, and how improvements in the delivery of council functions can be achieved. The Bill will also see the introduction of a new ethical standards regime and council-led community planning.
3. Members sought a balanced range of views as part of their deliberations on the Bill and requested evidence from interested organisations and individuals as well as from the Department of the Environment.
4. The Committee was broadly supportive of the Bill and agreed the majority of clauses as drafted. However, members expressed concerns about aspects of the procedure for investigating complaints against councillors under the Code of Conduct; the establishment and scrutiny of a performance improvement structure for councils; the introduction of community planning and engagement with other statutory agencies and Departments, as well as the community and voluntary sector; and procedural and governance arrangements for the new councils, including the lack of clarity around the criteria for the use of the call-in procedure. These have been detailed below.
5. The Committee welcomed the Department’s assurances that most of these issues would be addressed either by bringing forward amendments to the Bill at Consideration stage, or through subordinate legislation and statutory guidance.
6. Where the Minister was not minded to amend the Bill, the Committee agreed to make formal recommendations for his consideration and, in certain instances, to bring forward its own amendments.
7. The following key issues were identified in the course of the Committee’s consideration of the Bill:
Governance and Procedures
Constitutions of councils
8. The Committee welcomed the requirement contained in clause 2 for councils to produce a written constitution, but expressed reservations that no timescale was specified for the publication of the constitution. Particularly since the Department plans to provide a Model Constitution as a template, the Committee believes that a council should provide a constitution on a timely basis, and at least by the end of the expiry of the period of the Shadow Councils.
9. The Committee communicated these concerns to the Department, but the Minister has indicated that he does not consider it appropriate to amend this clause, so that councils are not pressured into publishing a hastily prepared constitution. The Committee feels that a specified time would act as an incentive rather than a constraint, and for this reason has agreed to bring forward an amendment at clause 2 (2) to specify that a constitution should be available ‘from April 2015’.
Lifting of the blanket ban on council staff standing for election
10. Clause 4 of the Bill gives effect to Schedule 1 which introduces a ban on MLAs, MPs or MEPs being elected as councillors, and which removes the current blanket ban on council employees from being elected or acting as councillors, with the exception of certain prescribed employees. During the second stage debate the Minister stated that these will be officers who are in positions where they work directly with, and provide advice to, a council or one of its committees.
11. Respondents to the Committee’s call for evidence expressed the view that the lifting of the blanket ban on employees acting as councillors will necessitate robust guidance, particularly in relation to potential conflicts of interest, and the Committee envisaged a number of practical difficulties in implementing this.
12. The Committee welcomed confirmation from the Minister that, after further discussion with local government, he plans to consult on positions of political sensitivity, as well as a geographic restriction on staff becoming councillors of the council where they are employed, so that these can be specified in subordinate legislation.
Positions of responsibility
13. Clause 10, together with Schedule 3, specifies the positions of responsibility within councils, as well as the methods to be used to fill these positions. Stakeholders largely supported the principle of proportionality, but some argued that consideration should be given to permitting local solutions which are politically acceptable, so that each individual council could decide how best to apply proportionality at local level, and to which positions.
14. The Committee was generally content with the provisions of the Bill on this issue, but called on guidance to be issued by the Department to clarify if all these positions, which include the mayor, deputy mayor and Committee chairs, are to be allocated annually or for the full four-year period.
15. The Bill offers alternative permitted governance structures for councils, and provides that the executive of a council must take the form of either one committee to be known as a ‘cabinet-style executive’, or more than one committee to be known as a ‘streamlined committee executive’.
16. The Committee raised issues in four areas on this aspect of the Bill. The first related to the operation of committees with quasi-judicial functions, such as planning or licensing. It is unclear from the Bill if these committees would be subject to the call-in or qualified majority voting, or if these committees would have their own in-built appeal mechanism. Departmental officials indicated this would be clarified by guidance and specified in standing orders to be covered by subordinate legislation.
17. The second area of concern relates to the role of the mayor and deputy mayor. These positions currently have both civic and political significance, and are part of the decision-making process, with the mayor (chairperson) having a casting vote. The Bill specifies at clause 25 (3) that a council executive must not include the chair or deputy chair in order to maintain the appearance of independence from the council’s decision-making.
18. The Committee agreed that the chair/ mayor and the deputy chair/ mayor need to be fully aware of the rationale behind any decisions taken by the council as they are held accountable by ratepayers and need to be in a position to be able to comment authoritatively on these. The Minister was not minded to make an amendment to reflect this; consequently the Committee agreed to amend clause 25 (3) to read ‘The chair and deputy chair of the council shall be ex-officio non-voting members of the executive’.
19. In its consideration of the number of members to be appointed to a council executive – either cabinet-style or streamlined – the Committee did not feel that the minimum number specified by the Bill, i.e. four members, was appropriate to ensure adequate cross-party representation. For this reason the Committee agreed to bring forward amendments to clause 25 at (4)(a) and (5)(a) to increase the minimum number to six.
20. The last area of the council committee structure which the Committee believes may require amendment relates to the application of the Quota Greatest Remainder process to the appointment of councillors to committees as outlined in Schedule 4. Members were concerned that the use of this process will result in independent councillors being unable to have a seat on any committee. The Committee therefore has recommended that this Schedule should be amended to ensure that the formula is run as a single process in respect of all committee seats from the outset over the duration of the council term.
Call-In (Reconsideration of decisions) and Qualified Majority Voting
21. The Bill specifies provisions to be included in standing orders to enable decisions which have not yet been implemented to be reconsidered (‘called-in’), and for the use of an enhanced majority (‘qualified majority’) to be used where appropriate. Stakeholders were generally supportive of the percentages prescribed – 15% of councillors in support of a call-in, and 80% of members present to provide a qualified majority – although fears were expressed that the overuse of either of these procedures could result in a deadlock in council decision-making. There is, however, provision for these percentages to be revised by regulations subject to an affirmative resolution of the Assembly.
22. The Committee’s concerns focussed very largely on the practical implications on the use of the call-in mechanism. The Bill does not specify the criteria to be used to determine the grounds for reconsideration under clause 45 (1)(b), that a decision would disproportionately affect adversely any section of the inhabitants of the district, and the Committee believed that any lack of clarity could lead to a specious use of call-in.
23. The Committee also remained concerned that the use of a call-in under 45 (1)(b) will require the opinion of a practising barrister or solicitor. Stakeholders had highlighted the practical difficulties likely to arise from the selection of a lawyer, but the Department indicated that the specification of a panel of lawyers, rather than an individual barrister or solicitor, would introduce an additional safeguard on top of a measure that was already designed to act as a safeguard in this process, and which may also have cost implications.
24. The Committee would therefore recommend that careful consideration should be given to ensuring that the criteria for call-in should be so clearly defined in guidance and Regulations that the role of the barrister or solicitor is not so crucial to this process; and that the procedures for obtaining an opinion from a barrister or solicitor will also be clearly outlined.
25. Although the Committee accepted the Department’s assurances that it was already working closely with representatives of local government to develop a process that would deliver local accountability and protection of minorities whilst not impacting on the transaction of council business, the Committee will welcome the opportunity to scrutinise these procedures in more detail during its consideration of the Local Government (Standing Orders) Regulations.
Code of Conduct
26. The Committee was supportive of the introduction of the Northern Ireland Local Government Code of Conduct for Councillors to standardise across all councils the principles of conduct expected from councillors. Whilst acknowledging the value of this, however, there were a number of areas where the Committee was not content with the provisions for investigation of breaches of the Code.
27. The main cause for concern was the lack of provision for an appeal mechanism against a decision by the Northern Ireland Commissioner for Complaints. The Commissioner is enabled to investigate, adjudicate and prescribe sanctions in respect of any alleged breaches of the Code, but no form of appeal against his decision is specified in the Bill. In his evidence to the Committee, the Commissioner took the view that judicial review was an appropriate option for appeal, but the Committee felt that this was not only time consuming but too limited in scope to be adequate.
28. In response to these concerns, the Department will amend clauses 62 and 63 to enable a councillor who is censured, suspended or disqualified by the Commissioner to appeal to the High Court. While the Committee welcomed these amendments, members believed that the grounds for appeal to the High Court should be specified on the face of the Bill, and should include leave to appeal against both an incorrect decision and an unduly excessive sanction.
29. The Committee has therefore agreed that a further amendment should be drafted by the Department to provide for this.
30. The issue of how more minor complaints against breaches of the Code should be addressed was raised with the Committee by various representatives of local government. Under the provisions of the Bill, all written complaints are to be referred to the Commissioner for consideration, and the procedures for investigation and adjudication are specified in Part 9 of the Bill. While it was agreed that this may lead to disproportionate action being taken, there was a lack of consensus as to how otherwise such complaints may be resolved since the comparatively small size of councils in Northern Ireland poses difficulty in establishing an internal mechanism.
31. The Department has endeavoured to provide for this by amending clause 58 to make the powers of the Commissioner more flexible so that he may take action other than conducting an investigation. This will enable the Commissioner to refer a complaint back to a council for local resolution or some form of mediation. As with the other procedures outlined in the Bill, this will be further clarified in guidance to be issued by the Commissioner.
32. The Committee agreed that it was content with this amendment.
Moratorium on Complaints
33. The nature and timing of bogus or vexatious allegations against councillors also concerned the Committee. The Commissioner gave an undertaking that complaints would be investigated with the utmost urgency, and that malicious complaints would be subject to the laws of defamation, but members believed that unfounded complaints made immediately prior to an election may result in a candidate losing a council seat. Indeed, evidence from the Welsh Commissioner for Complaints indicated that the number of complaints received immediately prior to an election almost doubled.
34. The Committee agreed to ask the Minister to consider an amendment to introduce a moratorium on complaints for up to six months before an election. The Minister responded that, while he understood the Committee’s concerns, he had to balance against this the possibility of actual and real complaints being barred from being investigated during that time. A moratorium would prevent well founded complaints from being brought into the public domain.
35. Although members recognised the practical difficulties in enforcing any kind of moratorium, the Committee urged the Department and the Commissioner to investigate how this issue can be addressed effectively without compromising on openness and transparency. This has been reflected in its recommendations.
Councillors on External Bodies
36. The application of the Code of Conduct to the role of councillors on external bodies gave rise to concerns from representatives of local government that there is an inherent unfairness that a councillor should be subject to a code of conduct whereas individuals who also sit on these bodies are not. The Commissioner for Complaints confirmed to the Committee that this would be the case, but he advocated the establishment of a code of conduct that would apply to all public appointees to ensure equivalence and the same level of accountability.
Apportionment of Costs
37. The allocation of the costs of the Commissioner’s office is specified by clause 67 as being apportioned to councils, by a method to be set out in Regulations. The Commissioner indicated to the Committee that he was unhappy with this clause as it inferred that councils were to be charged in proportion to the number of complaints made against them.
38. The Department has agreed to address this by ‘top slicing’ funding for the Commissioner from the grant paid out to councils and has indicated that it plans to bring forward an amendment to clause 67 to accomplish this. The Committee was content with this policy, but has not had sight of the proposed amendment.
Review of the Role of the Commissioner
39. The role that the Commissioner for Complaints will play in local government has still largely to be determined in a practical sense. The Bill sets out the framework of his responsibilities but there is a great deal of work to be carried out in drafting guidance and procedures. The Committee therefore very much welcomed the Minister’s assurance that he plans to carry out a review of the Commissioner’s role within three to four years.
40. Community planning is a new concept to Northern Ireland although it has already been introduced in other jurisdictions. Although the introduction of community planning has been given a broad welcome right across the board, it is the very newness of the process that has given rise to so many areas of concern among stakeholders.
41. The new councils will have a duty to engage with local communities to produce a community plan which will have links with its land use plan, and this will echo the new role of councillors in delivering statutory planning. The Bill does not specify time scales for the production of the plan, nor to what extent councils must be proactive in their consultation with local communities.
42. The community and voluntary sector believes that its role should be clearly specified within the provisions of the Bill, and that a list of statutory planning partners should be listed on the face of the Bill to ensure adequate and meaningful participation by these agencies. The sector also voiced concerns that the duty on councils to consult with communities has not been expressed in stronger terms and there is no provision for assessing the performance of community planning by monitoring outcomes.
43. Representatives of local government expressed fears that the whole process would be inadequately resourced and that government departments would not participate in the process in a meaningful way – NILGA stated that the effectiveness of community planning and the delivery of improved outcomes would depend on the strength of relationships between councils, departments and public bodies.
44. The Committee referred all these concerns to Departmental officials during oral evidence sessions. Officials reiterated that, while the Bill set out the partnership ethos of community planning, subordinate legislation and guidance would specify both the details of the process and the bodies to be involved as planning partners. The Committee was content that this would provide a greater degree of flexibility and the opportunity for greater inclusiveness than if these were to be included in the provisions of the Bill.
45. The Committee expressed concerns, however, that the requirement for engagement with the voluntary and community sector was not expressly stated in the Bill, and that there was no reference at clause 69 to a requirement to promote equality and good relations, or to address social deprivation.
46. Officials indicated that the Minister is unlikely to bring forward an amendment to include these criteria, but that he had not yet confirmed his intention. The Committee sought an assurance from the Minister that, at the very least, statutory guidance would clearly outline the role of the community and voluntary sector, and that the need for community planning to promote equality and good relations, and address social exclusion resulting from deprivation and poverty, would also be included in this guidance. The Committee has highlighted this in its recommendations.
47. The Committee has also recommended that the Minister should consider an amendment to clause 76 (1) to specify that reasonable arrangements should be made by a council to seek the views of relevant persons and to ensure that this does not become a mere box-ticking exercise.
48. The Committee was supportive of the requirement for councils to ensure continuous improvement in carrying out their duties and welcomed the enhanced role of the Local Government Auditor in scrutinising performance improvement information.
49. Issues raised by stakeholders focussed on what is perceived as a ‘top down’ model whereby the Department may specify the performance indicators and standards to be used by councils. Local government representatives expressed concerns that the proposals in the Bill are largely based on the Welsh model. This model has faced criticism that it has proved overly bureaucratic and costly, and ultimately taken resources away from councils. There were calls to ensure that any performance improvement model was developed in conjunction with local government and specifically tailored to Northern Ireland where councils do not have the same powers or budget as their Welsh counterparts.
50. There were also concerns that the indicators specified in clauses 87, 88 and 92 – strategic effectiveness, service quality, service availability, fairness, sustainability, efficiency and innovation – included no reference to economic considerations or value for money. However, the Committee accepted the Department’s explanation that these provisions replace the Local Government (Best Value) Act (Northern Ireland) 2002 and place the focus on improving performance rather than the concept of best value.
Audit and Assessment Reports
51. The NIAO expressed reservations that the provisions of the Bill did not provide flexibility for the auditor to take risk assessment into account in determining the extent to which full reporting will be required. The Audit Office believes that, once the new arrangements become embedded, it may be unnecessary for a report to be made in full and separately on every council every year, and that exception reporting may be more appropriate.
52. The Committee welcomed the Minister’s decision to consult with the NIAO to make an amendment to the Bill to allow for a risk based approach to the audit process over time, rather the annual reporting requirement, and accepted his assurance that he would review the audit process after a few years.
53. While the Committee welcomed the Minister’s intention to amend the Bill to bring forward the date by which councils must publish performance improvement information from 31st October to 30th September (clause 95), it was not content that this would allow the Local Government Auditor sufficient additional time to report on this information. The Committee consequently agreed that it would recommend that the Department should amend the reporting dates specified in clause 95 and 98 after due consultation with the NIAO.
Control of Councils by Northern Ireland departments
54. While the Committee did not feel that it was inappropriate for Departments other than the Department of the Environment to investigate the administration of any statutory functions of councils, the Committee was in agreement with stakeholder comments which highlighted that councils will have no form of appeal against a finding of failure. The Committee therefore recommends that the Minister should give consideration to amending clause 108 to provide for this.
55. The majority of respondents to the Committee’s call for evidence highlighted the importance of the guidance which will detail the implementation of this Bill. There are a number of aspects of this Bill, particularly in relation to community planning and performance improvement, where clear and detailed guidance will provide an essential support structure for those organisations, both voluntary and statutory, which will seek to deliver the provisions of the Bill.
56. The Committee would therefore recommend that the Department actively consults with these stakeholders as this guidance is drafted, and that it takes cognisance of views expressed during this consultation to ensure that the reform of this area of public administration is completed as smoothly and effectively as possible.
Recommendations and Committee Amendments
Constitutions of Councils
57. The Committee has agreed to bring forward an amendment to insert a publication date at clause 2 (2) and will specify that a council’s constitution should be available ‘ from April 2015’.
Positions of Responsibility
58. The Committee recommends that guidance should be issued by the Department to clarify whether all positions of responsibility, which include the mayor, deputy mayor and Committee chairs, are to be allocated annually or for the full four-year period.
Role of the Mayor and Deputy Mayor
59. The Committee has agreed to bring forward an amendment to clause 25 (3) so that it reads ‘ The chair and deputy chair of the council shall be ex-officio non-voting members of the executive’ to reflect its view that the chair/ mayor and the deputy chair/ mayor need to be fully aware of the rationale behind any decisions taken by the council as they are held accountable by ratepayers and need to be in a position to be able to comment authoritatively on these.
60. The Committee agreed to bring forward amendments to clause 25 at (4)(a) and (5)(a) to increase the minimum number of members to be appointed to a council executive – either cabinet-style or streamlined - from ‘ four’ to ‘ six’ to ensure adequate cross-party representation.
Procedures for Call-in (Reconsideration)
61. The Committee recommends that the criteria for reconsidering decisions, and the guidelines for obtaining an opinion from a barrister or solicitor, should be clearly defined in guidance and Regulations to ensure that the decision-making process of councils is not adversely impacted by the improper use of this procedure.
Appeal to the High Court
62. In relation to breaches of the Code of Conduct, the Committee recommends that an amendment should be drafted to add a further subsection to clauses 62 and 63 to specify grounds for appeal to the High Court in addition to those grounds which already form the basis for judicial review. These should include leave to appeal against a decision which was not supported by the evidence and against an excessive sanction.
Complaints made before elections
63. The Committee recommends that the Department and the Commissioner for Complaints should give consideration to procedures to ensure that complaints lodged with the Commissioner within six months prior to an election are dealt with in such a way so as to have due regard for both the protection of the reputation of a prospective candidate and the right for validated complaints to be made public.
Apportionment of Costs
64. The Committee recommends that the Department brings forward an amendment to clause 67 (3), (4) and (5) to remove the requirement for expenditure of the Commissioner to be apportioned to councils, and to substitute a provision for these costs to be ‘top sliced’ from the Departmental grant to local government.
65. The Committee recommends that the Minister gives further consideration to bringing forward an amendment to specify the requirement for community planning to promote equality and good relations; and that social exclusion resulting from deprivation and poverty is also specified. The Committee has already accepted his assurance that these, together with a definition of the role of the voluntary and community sector, will be addressed in statutory guidance.
66. The Committee further recommends that the Minister amends clause 76 (1) to insert the word ‘ reasonable’ before the arrangements to be made by a council to seek the views of relevant persons.
Audit and Assessment Reports
67. The Committee recommends that the Minister should work closely with the Local Government Auditor and the Northern Ireland Audit Office to ensure that statutory guidance and Regulations reflect the most effective use of resources, together with timely, complete and appropriate reporting of performance improvement information.
Control of Councils by Northern Ireland departments
68. The Committee recommends that the Minister should give consideration to amending clause 108 to provide for a form of appeal against a finding of failure by councils which have been investigated by a Northern Ireland department.
Use of the Quota Greatest Remainder
69. The Committee recommends that the Minister should bring forward an amendment to Schedule 4 to ensure that the formula for appointments to committee be run for all committee positions at once, and for the duration of the council term, based on the number of seats each party has immediately after the election.
70. The Committee recommends that the Department should actively consult with appropriate stakeholders as guidance is drafted, and that it takes cognisance of views expressed during this consultation to ensure that the reform of this area of public administration is completed as smoothly and effectively as possible.