Is your Constitution due a Health Check?

Local authorities have faced a significant amount of change over the past few years, with more to come to meet the financial and demographic challenges for the future. Understandably, not all Constitutions will be up to date, since it is likely that there will have been legislative changes, organisational changes, shared services arrangements, outsourcing of functions and creation of alternative service delivery vehicles that may mean that the Constitution requires a face lift. With Annual Council only a few months away, now is the time to be doing it.

A number of Councils have recently changed from an executive form of governance returning to the committee system, often seeking to provide wider participation by members of the authority in decision-making.

A committee style Constitution may, by its nature, be shorter (as it will not cover executive matters, including key decisions etc) but there may be numerous ways to shorten the document, whatever the form of governance (particularly if repetition is removed).

Duty to have a Constitution

A local authority is under a duty to prepare and keep up to date its constitution under s.9P Local Government Act 2000 as amended. The Constitution must contain:

• the standing orders/procedure rules;
• the members' code of conduct;
• such information as the Secretary of State may direct;
• such other information (if any) as the authority considers appropriate.

Constitutions must be available for inspection at all reasonable hours by members of the public and supplied to anyone who asks for a copy on payment of a reasonable fee.

A Constitution Direction was issued by the Secretary of State in December 2000 that required around 80 matters to be included within constitutions, covering members' allowances schemes, details of procedures for meetings, details of joint arrangements with other local authorities and a description of the rights of inhabitants of the area, amongst other things.

Fit for Purpose?

It may also be timely to have a look at whether or not the Constitution is fit for purpose and understandable by those who read it, including members of the public, who may wish to participate in Council business, ask questions at meetings, make representations, submit petitions or deputations.

Whilst precedent from elsewhere may be helpful, a Constitution should primarily be a locally driven document which reflects the character and culture of the organisation and facilitates Council business, rather than something that creates bureaucratic procedures and potential traps for decision makers that may come back to haunt the Council.

In these times of austerity it may be appropriate to look at the number of decision making bodies in the authority and see whether any savings could be made by reducing the number of such bodies and/or the frequency of meetings; increasing delegation to officers; and whether different types of forum may better serve the authority’s processes for the future and better engage local people.

Obtain Feedback

Before embarking upon a review of the Constitution it may be helpful to obtain feedback from a group of interested members as to what works well and what could be improved within it. Likewise officers will have views of what works well and what might need to be changed.

It may be appropriate to set up a member/officer working group to establish through consultation with those who are familiar with the document:

• What works well;
• What could be improved;
• Is the structure right and does it work (length/articles/summary etc)?
• Is it sufficiently “public facing” - can people express their views at meetings adequately?
• Are complaints and other processes (e.g. FoIA) clear?
• New legislation - has it been picked up?
• Are all “local choice” functions, e.g. outside appointments or secondments under s.113 LGA 1972, allocated?
• Are the schemes of delegation up to date, understandable and all encompassing?
• Are Proper Officer functions up to date e.g. s.36 FoIA exemption, re effective conduct of public affairs; and the officer to whom a written request for dispensations to participate and vote at meetings should be made under s.33 Localism Act 2011?
• Are appeals at the right level, only involving members where appropriate?

Legislative Change

In terms of recent legislative changes there may be outstanding questions and considerations, for example around:

• The filming, photographing and reporting of meetings and proceedings under the Openness of Local Government Bodies Regulations 2014 (SI 2014/2095);
• Whether the requirements of the Local Government (Executive Arrangements) Meetings and Access to Information (England) Regulations 2012/2089, which introduced the need for 28 days' clear publicity for the subject matter of key decisions to appear on the authority's website and be available for public inspection at the local authority's office, are properly reflected (rather than a forward planning process which is no longer required – but may be desirable);
• Whether the new Local Audit Panel arrangements required by the Local Audit and Accountability Act 2014 by December 2016 should be included;
• The Accounts and Audit Regulations 2015 requirements;
• The Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 that required new procedures to be introduced to involve Independent Persons on a Panel to advise and make recommendations to Council prior to dismissal of the Head of Paid Service/Chief Finance Officer/Monitoring Officer with new employment procedure rules and standing orders required to be adopted as soon as practicable after May 2015, replacing the previous DIP process for any disciplinary action; potentially adding a standing advisory panel for consideration of dismissal of statutory officers;
• Statutory Guidance on the constitution of the Licensing Committee and sub-committees under s.182 Licensing Act 2003, with appropriate decisions delegated to Officers and appeals;
• Are delegations to the Director of Public Health following the Health and Social Care Act 2012 included (for single tier/county councils);
• Are the Public Contracts Regulations 2015 reflected in your contract standing orders/procedural rules.

No doubt there are other issues that could be considered in any review of the Constitution, for example:

• In the event that a Leader of the Council is not elected (and so no cabinet is appointed), who would exercise or allocate executive functions in the absence of the Leader – should executive functions be delegated to the Chief Executive in the absence of a Leader and Deputy?
• Clarity over what comprises the budget and policy framework – the plans listed in the Functions and Responsibilities Regulations have reduced over time, but has the Council traditionally taken additional plans and strategies to Council as well as to the Executive, without legally requiring such plans to be approved by Council?
• Are limits for key decisions relevant to today's decision making and levels of virement, for example in the budget and policy framework?
• Are your other financial limits now meaningful, realistic and specified only once, so that changes do not have to be repeated multiple times in the Constitution?
• Do your procedural standing orders and delegations facilitate shared services and reflect delegations from or to officers of other authorities or health bodies (for example), where appropriate?
• Is your officer structure up to date and do you have a chart explaining the Council's member decision making processes, as well?
• Is it clear who has authority to agree severance of Chief Officers and have you created your Independent Person Panel as a standing body?
• Does the Member and Officer Protocol need to be reviewed or refreshed to reflect changing roles and responsibilities or particular issues that may have arisen in the authority?
• Could scrutiny be more effective?
• Where does responsibility and accountability lie for the Council's involvement in companies?
• How will the Council's relationship with a Combined Authority under a devo deal operate, particularly delegations, and how will Combined Authority Audit and Scrutiny work including nominations?
• Finally, has the Council considered the interaction of the Pay Policy Statement requirements with the Council's Constitution, in particular, the requirement to regularly review any policies allowing for voluntary severance, early retirement or redundancy and access to pensions as well as disciplinary and grievance policies, etc?

Whether the task appears relatively small or large at this stage, now is the time to start thinking about those changes that may help the Council to operate more smoothly and effectively in the new municipal year and reduce the risk of challenge in decision-making. Proposed changes may need to go through a committee before being presented to Council and therefore, as soon as the budget is out of the way, attention needs to be focused on detailed procedural and constitutional matters.

Help is of course at hand should you need either a health check or more detailed consideration of parts of the Constitution.

Judith Barnes, Partner

Frances Woodhead, Partner