Monitoring Officer Report Monitoring Officer Report April 2018 23 by these officers now are greater than ever. Local authorities make difficult, contentious, decisions on a daily basis, balancing the need to make cuts with the high expectations of the public and politicians of what levels of service could and should be achieved with less money. The scrutiny is greater than ever before and often immediate. Social media has enabled decisions to be criticised as they are made and the “debate” can be emotional, personal and ill informed. The statutory roles were created in the 1980s when the then Conservative government recognised the need for proper checks and balances in the framework of local authority governance and that sometimes officers needed to step in. At that time it was also recognised that these roles were going to be difficult and likely to face political pressure. As a result, they were given enhanced employment rights, the main one being that no disciplinary action could be taken against them unless it was recommended by a Designated Independent Person (DIP). The Coalition government and in particular the then Secretary of State, Eric Pickles, did not like this system because he felt that it led to attempts by local authorities to remove chief executives who were not doing their jobs properly being too expensive and protracted. And so, as one of his last acts, Mr Pickles removed the DIP protections. Initially the government did not want any protection at all for these officers, but there was too much objection to this. The regulations which were eventually introduced, not long before the general election in 2015, were totally different from the proposals which had previously been consulted upon. Now, there is no DIP requirement but any dismissal of any of head of paid service, 151 officer or monitoring officer has to be approved by full council. Before there can be any dismissal, the proposal must be considered by a panel of independent persons. The proposals came out of the blue and left authorities (at the time busily trying to manage elections) scratching their heads to work out how to put in place the required procedures for the first ordinary council meeting after May 2015. The independent people who now had to be consulted were particularly bemused as it was never in their job description when they applied and was nothing at all to do with the role they thought they were supposed to be carrying out, assuming that was understood. The independent person’s original role was also an ill- planned afterthought to the Localism Act standards provision. There was also the matter of the contracts which these officers have with their councils. The JNC model disciplinary procedures for chief executives stated that a DIP process would be followed. The system took some time to catch up. A revised handbook was issued in October 2016 which contains a model process remarkably similar to the old one. There is no DIP but there is a requirement for an independent investigator. This only contractually applies to chief executives/heads of paid service but it is likely that a similar process will be applied for the other statutory officers. Another significant difference between the new regime and the old DIP process is that any disciplinary action used to require DIP approval (save for a relatively short period of suspension). However, the new “protection” applies only to dismissal. This means pressure could be applied to a monitoring officer through “low level” disciplinary action with no independent scrutiny. The protection also does not apply to re-designation of the statutory role. It could be argued that such action could amount to constructive dismissal but this undoubtedly leaves monitoring officers more exposed to being eased aside if they are considered to be asking too many difficult questions. And once they have been eased aside they have no additional protection beyond usual employment law. So where does all that leave us? Anecdotally, statutory officers feel less secure. The local government press has featured a number of high-profile suspensions and departures of chief executives in particular but also other statutory officers. It feels like the governance framework has been weakened but is this any more than a feeling? Monitoring officers must still do the right thing. If they need to highlight governance failures or unlawful action they must act, but there is less confidence that they will be supported if they do. And there is a greater fear that standing up to unwarranted and unfair political pressure is likely to lead to termination of employment. The contractual protection provided in the JNC terms goes some way to redressing the balance, but the undermining of these positions has undoubtedly weakened the fabric of governance in local authorities in England and made the already difficult job of the monitoring officer even harder. Simon Goacher is Head of Local Government at Weightmans LLP. A significant difference between the new regime and the old DIP process is that any disciplinary action used to require DIP approval (save for a relatively short period of suspension). However, the new “protection” applies only to dismissal. This means pressure could be applied to a monitoring officer through “low level” disciplinary action with no independent scrutiny.