Tag: The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012

Was the Wirral Council Cabinet decision to consult on closing Lyndale School lawful?

Was the Wirral Council Cabinet decision to consult on closing Lyndale School lawful?

Was the Wirral Council Cabinet decision to consult on closing Lyndale School lawful?

                                          

Labour's Cllr Tony Smith (Cabinet Member for Children and Family Services) explains at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School
Labour’s Cllr Tony Smith (Cabinet Member for Children and Family Services) explaining at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School

Unless you’ve been on holiday or don’t read the papers you can’t fail to have heard about the decision by Wirral Council’s Cabinet last Thursday to start a consultation on the closure of a primary school called Lyndale School in Eastham for children with special educational needs. This was reported on this blog and in the Wirral Globe. There is also a large petition against closure that had attracted over five thousand signatures before the decision at the Cabinet meeting.

Over a year ago (on 10th September 2012) a law came into effect called The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 which changed the way Wirral Council’s Cabinet made decisions and introduced some further requirements as well as checks and balances.

The report seeking approval to consult on the closure of Lyndale School deems this decision to be classed as a “key decision”. There are four regulations in The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 which relate to key decisions.

Regulation 8 merely defines what a key decision is.

Regulation 9 states the following (decision maker refers to the Cabinet and is defined here):

9. (1) Where a decision maker intends to make a key decision, that decision must not be made until a document has been published in accordance with paragraph (2), which states—

(a) that a key decision is to be made on behalf of the relevant local authority;
(b) the matter in respect of which the decision is to be made;
(c) where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members;
(d) the date on which, or the period within which, the decision is to be made;
(e) a list of the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made;
(f) the address from which, subject to any prohibition or restriction on their disclosure, copies of, or extracts from, any document listed is available;
(g) that other documents relevant to those matters may be submitted to the decision maker; and
(h) the procedure for requesting details of those documents (if any) as they become available.

(2) At least 28 clear days before a key decision is made, the document referred to in paragraph (1) must be made available for inspection by the public—

(a) at the offices of the relevant local authority; and
(b) on the relevant local authority’s website, if it has one.

(3) Where, in relation to any matter—

(a) the public may be excluded under regulation 4(2) from the meeting at which the matter is to be discussed; or
(b) documents relating to the decision need not, because of regulation 20(3), be disclosed to the public, the document referred to in paragraph (1) must contain particulars of the matter but may not contain any confidential, exempt information or particulars of the advice of a political adviser or assistant.

As you can see from the above, the decision “must not be made” until a document has been published containing the information specified in (a) to (h) above at least 28 clear days before the meeting on Wirral Council’s website.

I emailed the Chair of the Families and Wellbeing Committee Cllr Wendy Clements and she pointed out in her reply that the Forward Plan listed the item Permission to Consult on an Option for Change at Lyndale School on 18th December 2013.

Yes, this entry on the Forward Plan complies with regulation 9(1)(a) and 9(1)(b).

However does it comply with 9(1)(c) and include “where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members”? No it just states “Decision due: January 2014 by Cabinet”, with no list of who the individuals that make up the Cabinet are.

Yes, regulation 9(1)(d) is complied with, however 9(1)(e) is not. Although there is a link now to the Cabinet report, this report was published on the 9th January 2014 therefore wouldn’t have been in existence on 18th December 2013. When this item was published on the Forward Plan this document wasn’t listed. Nor did it state the address from which copies of it could be obtained (Regulation 9(1)(f)).

Also as this report was submitted to the Cabinet, in contravention of Regulation 9(1)(g) this entry in the Forward Plan did not state that “other documents relevant to those matters may be submitted to the decision maker” or how to obtain these (Regulation 9(1)(h)).

There is provision within regulation 10 and regulation 11 for a decision to be made without following the notice requirements in Regulation 9, however this is only with the permission of the Chair of the relevant overview and scrutiny committee (in this case the Chair of the Families and Wellbeing Policy and Performance Committee) Cllr Wendy Clements. I emailed Cllr Wendy Clements asking her was she asked and did she give her permission, her reply was “In response to your specific questions; no, I was not asked, and no I did not give permission.”

The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007

Moving onto another legal requirement, regulation 8 of the The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 which states

8. Any governing body, local education authority or adjudicator (where applicable) when—

(a) consulting on proposals;
(b) considering or determining proposals;
(c) considering what are related proposals;
(d) making decisions on matters relating to implementation
must have regard to any guidance given from time to time by the Secretary of State.

This is the fifty-seven page guidance issued by the Secretary of State. Was this guidance that Wirral Council “must have regard to” included as an appendix to the report? No it wasn’t.

Had this guidance been read by Cabinet prior to making the decision to proceed to consultation they would’ve read things like this:

“The Special Educational Needs Improvement Test (Paragraph 4.55)

When considering any reorganisation of provision that would be recognised by the LA as reserved for pupils with special educational needs, including that which might lead to some children being displaced through closures or alterations, LAs, and all other proposers for new schools or new provision, will need to demonstrate to parents, the local community and Decision Makers how the proposed alternative arrangements are likely to lead to improvements in the standard, quality and/or range of educational provision for children with special educational needs. All consultation documents and reorganisation plans that LAs publish and all relevant documentation LAs and other proposers submit to Decision Makers should show how the key factors set out in paragraphs 4.59 to 4.62 below have been taken into account by applying the SEN improvement test. Proposals which do not credibly meet these requirements should not be approved and Decision Makers should take proper account of parental or independent representations which question the LA’s own assessment in this regard. ”

and

“4.59 Decision Makers will need to be satisfied that the evidence with which they are provided shows that LAs and/or other proposers have taken account of the initial considerations and all the key factors in their planning and commissioning in order to meet the requirement to demonstrate that the reorganisation or new provision is likely to result in improvements to SEN provision. ”

So bearing the above in mind, I’m starting two polls on this blog.

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

Cabinet (Wirral Council) 28th September 2012 Any Other Urgent Business Approved by the Chair

Any Other Business, Wirral Council’s Cabinet 28th September 2012

Interest declaration: The author is a member of a trade union and a member of the media affected by this law change.

There was an Any Other Business item at Wirral Council’s Cabinet last night, with a recommendation from Surjit Tour, the Acting Director of Law, Human Resources & Asset Management (which was agreed). It seems to be in response to a point I made a week ago by email to a Wirral Council councillor when the Cabinet agenda was published and follows on from this blog post, as the law referred to came into effect on the 10th September 2012.

I had previously brought it up with my trade union, that Wirral Council didn’t seem to be complying with the new law, which is why I followed the approach suggested and brought it up with Wirral Council’s legal team and the people involved. One councillor on the Cabinet has asked for an email about it which I will write in the near future.

URGENT BUSINESS

Recommendation

That Cabinet authorises the Council’s Chief Officers to seek all requisite consents and/or agreement on behalf of Cabinet from relevant persons as required by The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 where an item to be considered by Cabinet includes exempt information and it is not possible to provide at least 28 clear days notice of that item.

Personally, it’s not quite resulting in the outcome of considerably more openness and accountability I had hoped for (although most legislation has caveats and loopholes that can be exploited). It is however, a step in the right direction as it (hopefully) provides a check and balance on the executive power of the all-Labour Cabinet’s future attempts to make decisions behind closed doors resulting in less scrutiny from the press and public, as really (because to do so without giving 28 days notice they have to first seek consent from the Chair of the Overview and Scrutiny Committee first) should (unless officers and councillors are deliberately trying to make an administration make major decisions in secret) only happen very rarely.

This seems to be one small step on the way to complying with the legislation (whether the spirit and intent behind the legislation is followed depends how Wirral Council implement it in practice), which means regulation 5(2) and 5(3) don’t have to be complied with (see regulation 5(6)) if the part of the meeting held in private is “urgent and cannot reasonably be deferred” and they get the agreement of the relevant Chair of the Overview and Scrutiny Committee (or if they’re not available others are mentioned)).

Personally as last night’s Cabinet meeting (it wasn’t a special meeting but a regular one) was in the calendar of meetings decided on the 12th April 2012 and it was a matter that had been known about since 26th June 2012, why wasn’t the 28 clear days notice given (which would’ve had to have been given around the end of August 2012)? Well firstly, the Colas matter did need urgent attention (as Colas have been behaving churlishly since the public interest report by the Audit Commission as to how the contract was awarded to them was published and announced they don’t want the contract past 2014. So who’s Cabinet Portfolio does these two items fall under? It’s Cllr Harry Smith’s (Labour), the Cabinet Member for Streetscene and Transport.

Personally I think it should be the relevant Cabinet Member or Cabinet asking for consent from another councillor rather than Chief Officers on their behalf, although the legislation can be interpreted in different ways. In my opinion what was agreed last night puts too much power in Chief Officer’s hands, whose powers of persuasion over Wirral councillors are well-known.

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012

Interest declaration: The author of this piece earns a living from blogging and filming.
Interest declaration: This is being published on a blog which’ll be affected by the new legislation.
Interest declaration: The author of this piece and editor is an NUJ member.

Yes this is a blog post on the important new The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012.

This comes into effect on the 10th September 2012 (in just under three weeks time at writing this).

Some of the changes it brings on Wirral Council (and its relationship with the press are welcomed) and I summarise below. I’m surprised this is the first I’ve heard of it though.

Change 1

The definition of media (which currently basically covers print (newspapers and magazines) and broadcast (radio, TV etc)) is being broadened. It’ll be expanded so that new media reporters (Internet blogs, tweeting etc) will be covered by the current definition of who a journalist is.

Change 2

There are a variety of changes which make it easier for individual councillors at Wirral Council (presumably the Lib Dem/Tory opposition) to challenge decisions made by the Labour Executive.

Change 3

More transparency on various decisions taken by the Executive that affect more than one council ward, incur new significant spending or new savings.

Change 4

Councils can no longer cite “political advice” as a reason to exclude the public.

Change 5

If a meeting is due to be closed to the public, the council has to justify why it has to be closed and give 28 days notice of such a decision.

Change 6

Some of the legislation on Forward Plans (brought it by the last Labour Government) is being changed.

Quote from Rt Hon Eric Pickles MP (the Conservative Government Minister):

“Every decision a council takes has a major impact on the lives of local people so it is crucial that whenever it takes a significant decision about local budgets that affect local communities whether it is in a full council meeting or in a unheard of sub-committee it has got to be taken in the full glare of all the press and any of the public.

Margaret Thatcher was first to pry open the doors of Town Hall transparency. Fifty years on we are modernising those pioneering principles so that every kind of modern journalists can go through those doors – be it from the daily reporter, the hyper-local news website or the armchair activist and concerned citizen blogger – councils can no longer continue to persist with a digital divide.”

Chris Taggart, of OpenlyLocal.com, which has long championed the need to open council business up to public scrutiny, added:

“In a world where hi-definition video cameras are under £100 and hyperlocal bloggers are doing some of the best council reporting in the country, it is crazy that councils are prohibiting members of the public from videoing, tweeting and live-blogging their meetings.“

John Brace, Editor said,

“Nearly forty years after the Internet first came into existence, the rights of “citizen journalists” are being enshrined in legislation. Local authorities should not be frightened by the extra scrutiny and transparency this will bring.

As a professional working in this area I welcome some of the changes this will bring on my reporting of Wirral Council, Liverpool City Council (and other local authorities) and I wonder if it will also include other local political bodies such as Merseytravel, Merseyside Fire and Rescue Authority and the soon to be abolished Merseyside Police Authority.

However the existing laws on relationships with the press (print, broadcast, new media and others) need to be adhered to by Wirral Council. The press and the unions such as the NUJ also need to make sure that Wirral Council will “move with the times” and adhere to the new laws and comply with both the spirit and the letter of the new legislation.”

I will be providing a further update to this post once I have had the opportunity to read the legislation and digest its implications in full.