Ready, steady ... wait! Changes to executive decision making in local authorities

From today, 10 September 2012, local authorities must comply with new requirements regarding  local authority executive decision making. Those advising councils which operate executive arrangements will need to be aware of these to ensure that their authority observes the new requirements.

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089) replace the 2000 Executive Access to Information Regulations and contain a number of quite significant changes. The new regulations only apply to executive decisions and not to decisions taken by Council, a Committee or an officer on behalf of Council where similar but significantly different processes will continue to apply. 

The most significant changes relate to Key Decisions and holding meetings, or a part of them, in private session.

Key decisions

Previously there was a requirement to publish a rolling forward plan at least 14 days before the start of each month that set out details of all the key decisions which the authority anticipated making within the next four months. This has now been replaced by a requirement to publish 28 clear days’ notice of any intended key decision.  The notice must be available not just for inspection but also published on the authority’s website. 

So now an authority cannot take a key decision unless it has given the required 28 days’ notice, unless an urgent decision is required.  There are two different ways in which this can be done:

• the authority can take an urgent key decision without giving 28 days’ notice where it is impracticable to give the full notice, provided that the authority gives at least five days’ clear notice to all members of the relevant Overview and Scrutiny Committee of the authority, which can then call in the decision to check that it was genuinely urgent; or 
• where a key decision is so urgent there is not even time to give five clear days’ notice, the authority can take the decision if the Chairman of the relevant Overview and Scrutiny Committee has agreed that the key decision is urgent and cannot reasonably be deferred.  This notice requirement applies whether the key decision is to be taken by the Cabinet at a meeting, by the Executive Leader, the Executive Mayor, another Cabinet Member or by an officer without a meeting taking place.

DCLG has stated that “clear days” means calendar days, so the 28 days will include weekends and public holidays but exclude the date of the notice and the date of the meeting, i.e. for a meeting held on a Tuesday, the notice would need to be issued on the Monday four weeks beforehand.

Meetings in private

An entirely new requirement has been introduced for an authority to publish 28 clear days’ notice of the intention to hold a private meeting (or part of a meeting) of Cabinet.  This 28 day notice must then be reinforced by a five day notice which sets out the reasons for the meeting to be held in private, details of any propositions received as to why the meeting should be open, and the authority’s response (so it will be necessary to authorise the proper officer to determine the authority’s response to such recommendations). 

Once again, the regulations provide for an urgency procedure, under which the authority can decide the matter with shorter than 28 or five days’ notice, provided that it has first obtained the consent of the Chairman at the relevant Overview and Scrutiny Committee that the date by which the meeting must be held makes the notice impracticable and the meeting cannot reasonably be deferred. The requirement only applies to “meetings” and so would appear not to apply where the Executive Leader or Executive Mayor was taking the decision in person without a meeting or delegating the decision to a Cabinet Member or an officer to take without a meeting.

Publication of minutes

Other notable changes relate to the publication of minutes following an executive decision.  Previously, where an executive decision was taken by Cabinet or an Executive Member, a written statement of that decision had to be produced as soon as reasonably practicable, but where an individual officer took a decision, he only had to produce a written statement after taking a key decision.  The new regulations now require an officer to prepare a written statement of every executive decision which he takes, which must include a note of any executive member whom he has consulted in taking that decision.  Taken literally, this requirement is totally impracticable, but no doubt officers will find a way of operating this that enables them to carry on with their role whilst maintaining the necessary notifications.

Conflict of interest

Finally, there is a major change relating to all executive decision making where there is a potential conflict of interest on the part of the decision maker.  For all decisions made by Cabinet meetings, Executive Leader, Executive Mayor or Cabinet Member, and officers who consult any Executive Member, the new regulations provide that the record of the decision must disclose any “conflict of interest” declared by any Executive Member and a “note of any dispensation granted by the relevant authority’s Head of Paid Service”. The regulations do not define “conflict of interest” – while this would appear to include a disclosable pecuniary interest under the provisions of the Localism Act 2011, it could also include any other circumstance which might amount to common law bias or apparent bias on the part of the member.

No transitional provisions

As the regulations contain no transitional provisions, authorities have no power to issue the required 28 days’ clear notice until 10 September. Therefore, any key decision proposed to be made between 10 September and 19 October 2012 cannot be taken unless the urgency or special urgency procedures apply.

The regulations will need to be carefully read and observed by Monitoring Officers and other officers responsible for advising members on the decision making processes. It will be very important to think ahead and build in the time necessary to comply with the new rules.  The Chairman of your Overview and Scrutiny Committee is likely to be significantly more busy in considering whether or not to grant the request for key decisions to be taken urgently, as well as requests to hold meetings in private at short notice, both of which could be contentious from time to time. Authorities, particularly those who have some keen politics, will find that requests for urgency need to be handled with care from now on.