A test of strength

March 23, 2010

The transition to a ‘Strong Leader Plus’ model of executive, as envisaged by the Local Government and Public Involvement Health Act 2007 is complex, time-consuming and potentially disruptive for those authorities required to make it. In a two-part article, Peter Keith-Lucas explains what is involved.

The Local Government and Public Involvement in Health Act 2007 and the Local Democracy, Economic Regeneration and Construction Act 2009 contain a few important changes, and a lot of unnecessary legislative meddling.

The move to Strong Leader Plus is a classic example of such meddling, in the mistaken belief that it is possible to legislate to achieve strong civic leadership. The Act requires local authorities to go through a complex process, including public consultation, to make changes over which they have no choice, which will have minimal effect on the public, but which will cause significant disruption, particularly to balanced authorities.

The Local Government and Public Involvement in Health Act 2007 requires every authority which operates a Leader and Cabinet model of Executive to change its executive arrangements in accordance with a statutory timetable. This change is popularly known as transition to a “Strong Leader” model, but in fact it differs critically from and goes beyond a “Strong Leader” as permitted by the Local Government Act 2000.

County councils were required to make these changes for June 2009. Metropolitan districts and London boroughs are in the throes of it at the moment, having to implement the changes for May 2010. That leaves district councils (including district councils with unitary powers) who have to start the process now in order to take the operative resolution by Christmas 2010, to implement in May 2011.

Legislative Background

The Local Government Act 2000 required all principal local authorities to adopt “executive arrangements” in one of three forms:

Mayor and Cabinet Executive
Leader and Cabinet Executive
Mayor and Council Manager.

The only exceptions were for authorities with a population of less than 85,000 in 1999, or (as at Brighton and Hove Council) where the authority held a referendum for one of the Mayor models, and there was a “No” vote.

Within the Leader and Cabinet Executive model there was a considerable degree of local choice as to the relative strengths of Council and of the Leader, ranging from a “Weak Leader” pattern in which Council appointed both the Leader and the members of the Cabinet, and in which no delegations were allowed to an individual Cabinet member so that the Cabinet became the sole member-level executive decision-maker, through to a “Strong Leader” pattern where the Council elected the Leader and then the Leader appointed the Cabinet, and the Leader determined the degree of delegation of powers to individual Cabinet members.

Part 3 of the 2007 Act leaves the “Directly-Elected Mayor” model unchanged, abolishes the “Mayor and Council Manager” model (which only affects Stoke on Trent as they were the only authority to adopt it) and in England but not Wales amends s.11 of the Local Government Act 2000 to replace the “Leader and Cabinet Executive” model with the “Leader and Cabinet Executive (England)” model (which I refer to as “Strong Leader Plus”). Specifically, s.62 of the 2007 Act amends s.11 of the 2000 Act in three respects:

it inserts a new subs.(2A), establishing the new Leader and Cabinet Executive (England) as a permitted form of executive for English authorities;
it amends subs.(3), so that the old Leader and Cabinet Executive is now to be limited to Welsh authorities; and
it amends subs.(4), so that the Mayor and Council Manager model (which was only adopted by Stoke on Trent City Council) is now to be limited to Welsh authorities.

The new Strong Leader Plus model is a different legal form of executive to the old-style Leader and Cabinet Executive model, with the result that the transition to the new Strong Leader Plus model, as required by the Act, is a “change to the form of executive”, even where the authority is currently operating a “strong Leader” model under the Local Government Act 2000. Accordingly, even where the authority is currently operating an old-style Leader and Cabinet Executive, it still has to go through the extended process set out in the Act, even though the actual change in the form of executive would be very limited.

The new Leader and Cabinet Executive (England) Model

The new Strong Leader Plus model incorporates all the flexibility which was available in the old “Strong Leader” model of a Leader and Cabinet Executive:

In an old-style Strong Leader model it was already possible to provide that the Council elects the Leader, and the Leader is then responsible for:

determining the size of the Cabinet;
appointing the members of the Cabinet;
allocating portfolios or areas of responsibility to the various Cabinet Members;
allocating decision-making powers to the Cabinet and to individual Cabinet Members; and
removing and replacing Cabinet Members.

This is now to be mandatory.

Similarly, it was possible for the old-style Leader to be elected for a four-year term of office, although most Leaders were elected for a one year term. In the new model, the Leader must be elected for a four-year term of office (or up until the Leader’s ordinary term of office as a Councillor expires where the Council holds elections by thirds or halves, and the Leader is elected at a time when he/she has less than four years still to run).

However, the new Strong Leader Plus model has three key differences which cannot be achieved under the old model:

the Leader’s term of office is extended beyond the 4th day after the local elections to run up to the day of the first annual meeting after the Leader’s normal day of retirement as a Councillor (s.44D(3) and s.44E(3));
during his/her term of office, the Leader will automatically cease to be Leader upon death or disqualification, but may only be removed from office by a resolution of Council. Currently, the authority’s Constitution may specify other means of removing a Leader such as notification that he/she has ceased to be the Leader of the relevant political group, but now s.44G provides that the Leader may not be removed from officer except by resolution of Council (or as may be provided by regulations, but no such regulations have yet been made); and
in Sch.3, para.28, there is a requirement for the Leader to nominate a Deputy Leader, and provision that the Deputy Leader, or in his/her absence the remaining Cabinet Members, may act if the Leader is unable to act or the post of Leader is vacant. Whilst an old-style Leader may appoint a Deputy, currently the only powers which can be exercised by a Deputy Leader are the “portfolio responsibilities” of the Leader, as opposed to the statutory functions which are conferred by statute solely on the Leader, such as appointing or removing other Cabinet Members or objecting to senior officer appointments and dismissals. Interestingly, the Act also provides that when the Leader ceases to be Leader, the Deputy Leader reverts to being an ordinary member of Cabinet, rather than stepping up for the interregnum before a new Leader is elected by Council. Authorities might wish to make motions to remove the Leader a matter which requires written notice signed by a reasonable number of Councillors, to prevent ad hoc challenges, and might also require such motions to nominate a candidate for the vacated position.

Timetable for the change

Section 65 of, and Sch.4 to, the 2007 Act set out a timetable for making the change to the new executive arrangements. This timetable is different for different types of local authority:

county councils (and county councils which had been given unitary powers, such as the Isle of Wight Council) were required to resolve upon the change by 31 December 2008, and to implement the change from the third day after the next local elections (i.e. in June 2009, following the deferment of the local elections to coincide with the European elections);
London boroughs and metropolitan districts are next in the queue, having to pass the relevant resolution by 31 December 2009, and implement three days after their next local elections (i.e. May 2010);
non-metropolitan districts (which includes district councils which have been given unitary powers, such as York City Council) are last in the queue, having to pass the relevant resolution by 31 December 2010, and implement the change three days after the next local elections (i.e. May 2011).

An authority can only make the change to Strong Leader Plus model in accordance with this timetable. So an authority can amend its existing Leader and Cabinet Executive model to strengthen the Leader, but cannot make the three key changes set out above or formally move to Strong Leader Plus model except in accordance with this statutory timetable. Even if it goes as far as possible towards a Strong Leader model now, the authority will still need to resolve and make the change to the new form in accordance with the statutory timetable.

Existing Mayor or Alternative Arrangements

Where an authority has a Mayor and Cabinet Executive model, it is not required to make any change. Where the Council and the Mayor agree to a change, then the change would have to be to a Strong Leader Plus model if the change was made on or after the relevant date in the statutory timetable, and can only be made if approved in a local referendum.

Where an authority currently operates alternative arrangements (i.e. is a “sub-85,000 authority”), there is no requirement to make any change, but if the authority wishes to make a change, it can only do so in accordance with or later than the statutory timetable. So a sub-85,000 District Council is now barred from moving to an old-style Leader and Cabinet Executive, and can only move to a new-style Strong Leader Plus model in May 2011, or later (s.33I).

Peter Keith-Lucas is a local government partner at Bevan Brittan (www.bevanbrittan.com). In part two of this article, he will look at, amongst other things, the process of change and practical implications.