CHAIRMAN:

Mirza F. N. Ahmad,  M.B.A., LL.M,  Barrister

Chief Legal Officer,

Birmingham City Council,

Ingleby House, 11-14 Cannon Street,

Birmingham  B2  5EN

DX : MDX 13053

Tel: 0121-303 9991,   Fax:  0121-303 1312

E-mails : Chairman@balgps.org.uk; Mirza.Ahmad@birmingham.gov.uk

 

HONORARY SECRETARY:

Robert Posner  MBA, Barrister

Electoral Commission,

Trevelyan House,

Great Peter Street, London,

SW1P 2HW

T: 020 7271 0500

E-mail: bposner@electoralcommission.org.uk

 

 

27 November 2007

 

IMPROVING LOCAL GOVERNANCE THROUGH EFFECTIVE

LOCAL STRATEGIC PARTNERSHIPS (LSPs)

 

A.        Background

 

  1. Successive Governments have, especially over the last 25 years, encouraged better partnership working at the local level.  However, this has not been totally backed up with legal realism from central Governments and has led to (and continues to have the greatest potential to lead to) muddled thinking by civil servants, regional Government officers, Local Authority policy / finance officers, non-lawyers and local politicians.  In terms of local politicians, they cannot be blamed as they have to rely upon the others for advice and, in particular, their legal advisers to ensure the deliverability of what they seek to put in place in accordance with good governance principles.

 

  1. On occasions, however, Monitoring Officers and their lawyers are not engaged at a sufficiently early stage to “build in” good governance measures and, as a result of this, the Local Authority members serving on LSPs drift into unchartered legal territories and are exposed to defective and potentially unlawful / illegal decision-making by policy / finance officers and non-lawyers, if the relevant laws / democratic processes are not duly complied with. 

 

  1. The partners and elected members serving on partnerships may also be unclear about declarations of interest at such partnership meetings and this may also, inadvertently, drift into breaches of the Code of Conduct for Members, with associated sanctions,  reputational and managerial / political difficulties.  Local citizens and businesses can also suffer if the quality of decision-making is not robust enough or are subject to unnecessary / lengthy legal challenges through the courts.

 

B.        Best Practice

 

  1. There are many progressive Local Authorities, such as Birmingham City Council, who have already devolved executive powers to Constituencies / Ward Committees and have worked closely with / through / in strategic (and local) partnerships – including City Region fora – consisting of other public / private / voluntary sector organisations.  Citizens / businesses are also actively engaged with the same with varying degrees of success. 

 

  1. Such partnerships, invariably, take the form of unincorporated associations and, as such, have no basis in law as the “partners” retain all the powers to deliver whatever has been “agreed” by the partnership collectively through their organisations.  This then is where the legal problem begin to raise alarm bells for good Monitoring Officers.

 

 

 

C.        The Problem

 

  1. In the context of Local Authorities, it means that executive decision-making that may be necessary to implement the “agreed” collective (unincorporated association) partnership decisions must continue to be dealt within the Local Authorities as delegation of executive decision-making (because of the Local Government Act 2000) cannot be delegated to non-executive bodies of the Council.  Accordingly, executive decisions will need to be made by Executive Members of local authorities or confirmed through the Local Authority processes and this could delay matters.  On a positive note, this necessary step does provide relevant safeguards for back bench Members (and, indirectly, citizens) to scrutinise the decisions of the executive and, importantly, the working of the same with / through / in those partnerships. 

 

  1. This position is becoming more and more complex with the patchwork quilt of partnerships being encouraged by Government as it continuously pushes unincorporated association partnerships to “pool” budgets and expect Local Authorities to “act in collaboration” with such partnerships.  Local Authorities are also required by the Government to be “Accountable Bodies” for such partnerships and exercise ‘powers’ of influence, but not control, accountability or responsibility for the same. 

 

  1. Furthermore, elected members have to abide by the Members Code of Conduct, whereas other partners are oblivious to the same and many of the partners are unlikely to be subject to the high ethical governance standards demanded of elected members.  It cannot be good governance to have a few “decision-makers” in the room subject to high ethical standards and the others have no ethical restrictions placed upon them, save for obvious conflicts of interest.  This trend is likely to lead to greater confusion – not less  - amongst partnerships with the Government’s expanding agenda on Local Area Agreements (LAAs), Multi-Area Agreements (MAAs) and “single grant budgets.”

 

  1. That then is the legal reality of partnership working.  It is a confusing patch for non-lawyers and some lawyers also struggle to unravel the legal realities of some complex partnerships.  It is, therefore, high time that the Government revisited the working of the executive arrangements under the Local Government Act 2000 and the applicability of the Code of Conduct for Members to non-elected partners.  Unless it acts now, the Government is in danger of becoming “out of touch” with the practical realities of partnership working.

 

  1. At one level, if the partnership is a legal entity (i.e. a company / Trust), the Local Authority can consider what powers / funds to delegate / allocate to it and to hold it accountable – through, for example, Service Level Agreements - for the delivery of the same.  This is not so obvious or “clear” for an unincorporated association of partners even though the Government holds the Local Authority as the “accountable body” for the funding / auditing arrangements of the partnership.

 

D.        The Solution(s)

 

  1. Fortunately, there are solutions to the legal problem:

 

(i)         change the executive restrictions of the Local Government Act 2000 to permit Local Authorities to delegate ­executive decisions to local strategic partnerships and to make their decisions, for all intents and purposes, executive decisions of the Local Authority executive; and/or

 

(ii)        ensure local authority executive members sitting on LSPs have delegated executive powers on behalf of the Local Authority, in relation to LSP business, with appropriate overview and scrutiny of the same.

 

  1. The first solution is preferred as it would also legally “firm up” the role of Overview and Scrutiny to scrutinise such partnerships.  In other words, this legislative change – of recognising unincorporated associations as being a body to which local authorities can delegate executive functions – will also help to strengthen the Government’s agenda to make local strategic partnerships more accountable – not less - to Local Authorities through the Overview and Scrutiny arrangements of Local Authorities.

 

  1. The second solution, although “workable,” will still not give Overview and Scrutiny powers over LSPs – just over executive members who had such delegated power - and this has the potential to perpetuate the current muddled status quo position amongst non-lawyers.

 

  1. The role of the Standards Board for England should also be extended to cover partners serving on such partnerships and place them – in terms of the Members Code of Conduct – on the same footing as co-opted members of the Council and subject to the provisions of the Members Code of Conduct.  This should further promote trust and confidence in local governance – not just in local government.

 

E.        Concluding Remarks

 

  1. I accept these are intricate legal points and I am happy, therefore, to discuss the same with relevant Ministers and Civil Servants with a view to finding appropriate solutions to address these practical difficulties for elected Members and local strategic partnerships.  I offer, therefore, to work with civil servants / government lawyers to explore the legislative changes necessary to make the preferred solution happen.

 

  1. In the meantime, I regret that it will only take one prominent case to highlight the risk that the Government and some Local Authorities are currently taking in failing to consult lawyers over their local strategic partnership arrangements or in not placing good governance at the heart of what they do through.  As I say, there is great muddled thinking by policy / finance officers and non-lawyers involved with partnership working at the local and national levels. 

 

  1. Elected Members, as highlighted above, are not to blame on this issue as they have to rely upon those who advise them and it is high time the Government acted to clarify the law and ensure elected Members are not exposed to any further unnecessary legal risks.  I believe the Government has a moral and a legal duty to act as implications for citizens can be profound in reputational terms and so as to improve trust and confidence in local governance. 

 

  1. The press has already shown a keen interest in this important area and a copy of this paper will be provided to the press a week after the date of this paper so as to give the Government the opportunity to reflect on the legal problems and suggested solutions.  On my part, I stand ready to support the national drive to further improve local governance arrangements.

 

 

 

Mirza Ahmad, MBA LLM Barrister

Chairman