Thursday, December 03, 2009

Unlawful acts?

'But Mr Dent, the plans have been available in the local planning office for the last nine months.'
'Oh yes, well as soon as I heard, I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean like actually telling anybody or anything.'
'But the plans were on display....'
'On display? I eventually had to go down to the cellar to find them.'
'That's the display department.'
'With a torch.'
'Ah well, the lights had probably gone.'
'So had the stairs.'
'But look, you found the notice, didn't you?'
'Yes,' said Arthur, 'yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying
Beware of the Leopard.'

Not for the first time, I find comfort in the great man's work. I wasn't aware until now that Birmingham City Council regarded it as a handbook on public consultation.

On Tuesday, the City Council voted to move to a new system of governance. You can be forgiven for not realising that there was a change in the offing, but the governing party wanted to do it quietly and I don't think that they've done it properly.

Back in 2007, the Local Government and Involvement in Public Health Act - a mouthful of legislation by itself - mandated that local authorities in England would need to move to one of two systems of executive government, either an elected mayor or a council leader on a four-year term with a cabinet of councillors. Birmingham, as you will be aware, has operated the leader and cabinet system for a few years now, but with a leading councillor only on an annual lease. This means that the shift across to a new system is relatively minor, as it only actually extends the term of the leader to four years, starting after the next election, but the process is laid down in the Act (s33E).

Much of what is required was carried out - the proposals were drawn up with a timetable and presented to the council. The problem is with s33e paragraph 6

(6) Before drawing up its proposals, the local authority must take reasonable steps to consult the local government electors for, and other interested persons in, the authority’s area.

Now, the Act does not specify what form this consultation should take, but there is case law which demonstrates what is required of a genuine consultation. (R v North and East Devon Health Authority ex parte Coughlan, if you want the reference)

To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose and the product of consultation must be conscientiously taken into account.

What did other cities do?

Well, Whitless' favourite English city, Manchester, laid down the gold standard for consultation on this matter. A leaflet was prepared by the city solicitor in consultation with the leader of the council and the opposition leader, which was then distributed to 213,000 households across the city and supplied to local libraries, supported by articles in the local press and a dedicated website. In addition to this programme over the course of August and September, other key stakeholders were consulted - councillors, business groups, voluntary organisations and MPs. A very thorough exercise, all in all and one that generated over 3000 responses - two-thirds of which were in favour of the leader/cabinet system.

Across the Pennines in Leeds, they did something a little more low key. Again, a council officer drew up the consultation plan with the political group leaders and it was mainly carried out through their 'Talking Point' online presence. Just like Manchester, they also directly contacted certain groups - parish councils, MPs, minority groups, council officers and councillors. This generated 740 responses from non-councillors and again, the preference was for the leader/executive model.

The Leeds process has been replicated across the country, as the Manchester model was - probably rightly - regarded as overly expensive.

So, how did Birmingham consult?

They put an advert in the Birmingham Mail and the Birmingham Post. The Mail advert - enticingly filled with small print - was ideally placed on the same page as adverts for massage parlours. This probably isn't the right demographic to catch the more civic-minded amongst the Birmingham electorate.

Apart from a brief mention on the dodgy website, that was it.

Strange, as they do have a dedicated consultation website, albeit rather underused.

Surprisingly enough, in a city of almost a million people, nobody expressed an opinion about the change in governance processes. Even the chair of the scrutiny committee, Lib Dem Alistair Dow was bored by the process and commented

'People are not interested in this issue. As long as their bins are collected and services provided they are not interested in how the council is run.'

There's nothing wrong with the consultation process - it is the people who are wrong. Remember that.

The other interesting point is that the 'consultation' process was actually carried out AFTER the proposals had been drafted, in clear contravention of the terms of the Act. Remember what the Act says?

(6) Before drawing up its proposals

The adverts included details of the option proposed for the council - that of leader and cabinet. The council had clearly prejudged the matter and have failed to provide for a consultative process that meets any basic test in case law.

Paul Tilsley compounded the error by commenting that

the Government demanded they issue public notices in the local press and have done so.
Not for the first time, Paul's wrong.

The Act does not specify the terms of the consultation in any way - it just demands 'reasonable steps.' BCC have misread the Act. What Paul is referring to should be the NEXT stage of the process.

(8) After drawing up the proposals, the local authority must—
(a) secure that copies of a document setting out the proposals are available at their principal office for inspection by members of the public at all reasonable times, and
(b) publish in one or more newspapers circulating in its area a notice which—
(i) states that the authority has drawn up the proposals, (ii) describes the main features of the proposals, (iii) states that copies of a document setting out the proposals are available at their principal office for inspection by members of the public at such times as may be specified in the notice, and
(iv) specifies the address of their principal office

Following that, then the council should move a resolution to adopt the proposals. The formal public notice is not the consultation phase. If Paul Tilsley is correct, then the council have not carried out any consultation at all. If he is wrong, then the council has simply failed to meet the minimum standards for a proper consultation and has passed a resolution claiming that they have. Potentially, the whole thing is ripe for judicial review if anyone could be concerned.

As a result of this flawed process, most of the Conservative group on the council have ended up voting for something in direct opposition to current party policy. Not only did they deny the people of Birmingham consultation, they denied them a vote on the future governance of their city. Around a third of the group absented themselves from the chamber, according to the Stirrer, a list that includes assorted parliamentary candidates and those who observers predict to have ambitions in that direction, as well as Whitby himself, who was clearly aware that the Conservative leader of the largest local authority voting against a referendum might just be front page news in its own right.

But yet again, we have a council that writes the rules as it sees fit. And if we don't make the effort to look in that hidden, locked filing cabinet, then that's apparently our fault - not the fault of the person who holds the key.

Exciting this isn't. It may only be a technical change to the governance of our city, but it has been carried out with excessive haste - almost as if the council forgot that it had to be in place by the 31st of December. But that couldn't be the case, could it?

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