On 15 August 2012, the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089) which were aimed at introducing greater openness in executive council meetings, see Legal update, New regulations on meetings and access to information published for local authorities operating executive arrangements, were laid before Parliament.
Surprisingly (given their far-reaching consequences), the regulations were not subject to a formal consultation although given the extremely tight timescale for their implementation (having been laid before Parliament on 15 August 2012 the regulations were to be effective from 10 September 2012) this would have been an impossibility.
However, the government did take various soundings from key local government organisations, such as the Local Government Association (LGA), the Society of Local Authority Chief Executives, the Association of Council Secretaries and Solicitors (ACSeS) and CIPFA. Despite the LGA opposing the regulations, stating that they were unnecessary given the existing commitment of local authorities to transparency and accountability and the fact that the then rules and regulations already allowed for maximum transparency, the government pressed ahead with introducing the new regulations. It did so on the basis that it considered the previous regulations only allowed, rather than required, maximum transparency which, in practice, resulted in more meetings being held in private than the government considered could be properly justified.
From the moment of their implementation, local government circles have expressed concern at the huge administrative burden that the regulations and, in particular, regulation 13(4) imposes on the local government decision-making process. The requirement in regulation 13(4) is that executive decisions taken by officers are recorded in a written statement, which must include the decision, its date and a record of the reasons for the decision, any alternative options considered and rejected by the officer and any note of dispensation granted by the relevant authority’s head of paid service in respect of any declared conflict of interest.
In essence, as has been pointed out by the District Council’s Network (DCN), regulation 13(4) covers every single decision made including such routine decisions as the purchase of paperclips or whether to respond in writing to a complaint about the level of a particular service. (Note, however, that non-executive functions such as personnel issues, elections and regulatory matters are excluded). Although the requirements in the regulations are substantially carried forward from the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 (SI 2000/3272) (2000 Regulations), the important difference is that the 2000 Regulations applied to “key decisions” (that is those decisions that were likely to result in expenditure or savings that were significant in relation to the relevant budget (regulation 8, 2000 Regulations)) as opposed to “executive decisions” (being decisions made in connection with the discharge of a function that is the responsibility of the executive of a local authority which by default are all local authority decisions).
Given that most decisions of a local authority are executive decisions and there is widespread use by local authorities of their statutory power under section 101 of the Local Government Act 1972 to arrange for the discharge of their functions to an officer of the authority, there is a pressing need for clarification of the extent of regulation 13(4). Recent advice from Clive Sheldon QC of 11kbw to ACSeS suggests that it is not open to councils to limit the regulation 13(4) recording requirement to “key decisions”. However, since an executive decision is one made “in connection with” the discharge of an executive function and this could mean either “closely” or “remotely” connected, Mr Sheldon considers that it would be appropriate for authorities to adopt the former interpretation that is, “closely connected with”. In his view, this would take out purely administrative decisions (such as those relating to the purchase of stationery) from the compass of executive decisions since they are only tenuously connected with the discharge of an executive function.
Surprisingly, the Department for Communities and Local Government has recently asserted that regulation 13(4) does not apply to officer decisions and that the DCN has “got the wrong end of the stick”. However until an amending regulation is made, regulation 13(4) (as enacted) means that a large number of other decisions are encumbered by the new requirement. It is our understanding that ACSeS is seeking an early meeting with the DCLG to discuss options for addressing this particular issue and we await developments with interest.
For more information on governance and decision-making, see Practice note, Local government in England: governance and decision-making.
Note that, on 18 October 2012, ACSeS published a guidance note for its members on how to apply the Regulations covered in this post to officer executive decisions. For more information, see Guidance note published on how to apply new regulations on meetings and access to information to officer executive decisions: http://uk.practicallaw.com/9-522-1365.