The White Paper – new organisations and new rule books to come

In the second in a series of articles on the English Devolution White Paper, Philip McCourt looks at the establishment of new councils and the drafting of their constitutions.

Following our introductory commentary on the White Paper, Bevan Brittan are producing a series of articles focussing on the aspects which bring together what we consider to be the key areas of interest and focus that we believe will now be keeping us all in local government circles exercised and engaged.

The first of these is about the creation of new authorities, starting with a blank piece of paper and then setting about putting down the rules of operation for that new organisation. This will include those rules that are imposed, those rules that are chosen to ensure smooth, lawful and efficient running, and those rules that seek to capture the culture, purpose and objectives of the new body as its shadow and new members envisage it; in other words its constitution.

For the new strategic authorities, there is the challenge of genuinely starting something afresh. The first rounds of combined authorities were able to build not just on their deal as negotiated with central government but were able to build on the foundations of the integrated transport authorities, their pre-existing combined working arrangements (those that arose from the abolition of the old metropolitan counties on the same or similar city region boundaries) and the LEPs that were. The newer authorities will have great ambitions but will not necessarily have the same resources or local government experiences to call upon and may well find themselves with staff (and the newly elected mayor) with no public services background at all. For them this will be a fast and steep learning experience and one which Bevan Brittan regularly assist and train on.

For the new councils, theirs is about building something new but in the context of several subsumed authorities whose members and officers will come together in their new role with a need to find a commonality, not least because their expectations of that will highlight that their former authorities did indeed each operate under different rules, assumptions, customs, practices and working cultures (and sometimes in surprising ways). This of course will take place alongside the very practical issues that will arise in disaggregating or hosting the functions of former counties and aligning and integrating the functions of former districts, all bringing their own very practical challenges in terms of property, IT, assets, contracts, and staffing, which will be the subject of a forthcoming note. In this, Bevan Brittan have a wealth of experience in supporting councils through the last set of reorganisations.

For everyone else, a review of their constitution and cultural approach will nonetheless be required in respect of the White Paper’s promises on remote meetings, the potential for proxy voting, and a step up in standards and civil behaviour. All of which might be the catalyst for a deeper review.

So what form should a constitution take? Some time ago we entered a debate about a constitution at a local authority who told us with some glee how they had joked of an offer of a case of decent wine to any of their staff who could read the local authority’s constitution from end to end. They considered that this was a safe bet, because no one could or would be willing to do such a thing, underlining their point that it was bloated and not fit for its purpose. By contrast, we have had offered up a slimmer alternative to check, which was said to be streamlined and efficient but which had as a result several essential elements removed and was in our view unlawful.

The criticism of the slim and ‘usable’ form was correct, it was unlawful and simply didn’t do the job it was required by law and the organisation to do. The person offering up the wine also had a point, however, which is that local authority constitutions are long and complex sets of documents which, by and large, are often not easy reading, are difficult to navigate and don’t always assist the enquirer in the way that they should. All of which highlights that a local authority constitution exists with two distinct, and to some degree conflicting, fundamental objectives.

The essential objective is that they contain the rules of governance that an authority must follow. In this, a constitution can often feel like a set of contracts, it exists to cover a whole host of required situations and contain what is to happen in managing a large variety of potential actions, processes and eventualities. Like large contracts, much might be seen as unnecessary (“who needs a contract and a formal contractor relationship when we work so well together as partners” we hear) and therefore sits unthumbed and gathering dust, until one of those eventualities comes to pass, when of course everyone looks to the contract to see what to do next or to solve the difficult problem. Much like that contract, a constitution that is not managed, maintained, nor reflects the relationships and their objectives as they have developed and changed, is doomed to difficulties. (As an aside, this is a reality of many of the PFI relationships that are now coming to their end and keeping our colleagues busy helping councils catch up.) What makes it different to other organisations’ rulebooks, however, is that its standing orders and legal necessities are those to be designed and demanded of a public authority, spending taxpayers’ money, and which has a direct relationship with the communities that elect its governing body.

The second objective is, therefore, to guide the public, the elected member, the officer and the contractor through how the local authority works and what their part in its workings is or might be. To this end, it must be usable, in plain language, and give the choice of containing enough to understand the basics for everyday use, but link to the detailed elements when they need to be referred to. This can be easier said than done.

At its best, a constitution is a ‘living’ set of documents, containing both rules and guides, in a way that can be easily navigated. The various parts should exist in a way that allows a casual user to read through the headlines to understand the basics and how their local authority works as a whole, and then to draw down into increasing detail as required. It is for this reason that the original modular version was set out as a series of Articles (now often replaced by many with a detailed summary) with reference on to the following collections where needed of the more detailed rules, protocols and codes on the distinct elements that go into the running of a local authority.

At Bevan Brittan, therefore, we are not surprised when undertaking legal health-checks, reviews or re-drafts for local authorities, that we find various elements of a constitution that have, over time, been added to, duplicated, taken out or, as many have found to their cost, simply left alone as the world and changes in the law and best practice has passed it by.

A constitution might also be compared to a manual for a large and complex set of machinery (to mix metaphors). Like any customised machine in long use, the manual that came with the factory setting is not always relevant. Custom and practice in reality has meant that the manual now refers to old and out of date requirements, and obsolete parts, and is now covered with so many post-it notes, inserted additional and replacement pages or scribbled annotations in the margin, that it has become confusing or even unintelligible. Added to that, modern life now operates with a use of technology to help navigate it that is missing.

This is why it is recommended that constitutions should be looked at each year and are reviewed more fundamentally every five years or so.

Reviewing a constitution is not a straightforward affair, because to work it requires a sense of buy-in and understanding from those involved, especially members. In our experience this is better when posed as a series of questions than as any kind of pre-drafted page turner. Gaining the answers to those questions allows the authority to prioritise, engage and discuss and the outcomes, and allows the likes of us to go away and draft new provisions. Sometimes these questions are:

• straightforward, such as “do your contract standing orders accord with the new procurement provisions?”;
• thoughtful, such as “what should the objectives of the constitution be?”;
• political with a small ‘p’, such as “what is the financial threshold for a decision?”, or with a large ‘p’, such as “what should be the criteria for call-in for review?”;
• challenging, such as “here is the difference between your rules and the ‘factory setting’ so why the difference?”; and
• technical, such as where we ask “Does your current constitution meet the health-check of what must be in there?”.

Helping with the asking of these questions have been the Association of Democratic Services Officers (ADSO). ADSO is the body of peer officers who arguably most closely and regularly work with interpreting the constitution and explaining it to others, including advising an authority’s members, chief officers and monitoring officer as to how it is working in practice and what is said by those providing feedback from enquiries from the public, members and others. For some time now, a member benefit of ADSO has been access to a review of an authority’s constitution as a peer process. They have found that their involvement, as being from those at the governance sharp end, has provided a heightened confidence, trust and a willingness to engage in the review by those they speak to. The result is a report and a series of recommendations for the authority to act upon.

Bevan Brittan, in turn, have provided authorities with the confidence of our long standing expertise in local authority governance and public law advice, constitutional health checks and the drafting of their constitutions. We currently have a team of five who work in our local authority governance practice and on constitutional reviews, which we can say is more than any other firm. Together we hold over a hundred years of experience of being a local authority monitoring officer or chief executive, and in advising local authorities on good governance.

Launched at the ADSO conference of 25^th and 26^th November 2024, ADSO and Bevan Brittan will be jointly promoting our working together to assist authorities in the review and drafting of new and existing local authority constitutions.

Philip McCourt is a legal director at Bevan Brittan and the current author of Knowles on Local Authority Meetings, A Manual of Law and Practice published by the Chartered Governance Institute UK & Ireland

This is the first in a series of articles on specific aspects from the White Paper. Further articles will follow on Standards, super town councils, employment issues in local government re-organisation, and contracts, assets and mechanics of local government re-organisation.