Guest post by Philip Grant in a personal capacity
Last Friday, Martin published an Open Email which I’d sent to Brent
Council’s Corporate Director of Governance, complaining about a Cabinet Member Foreword included in the report
illustrated above. I received a reply from that Senior Council Officer on
Monday morning, and sent my response to it just before lunchtime on Wednesday.
It may seem as though I am making a fuss over a relatively minor matter,
but when those in power at our local Council seem to be abusing the power that
they hold, I think it is important to point it out, and to do so publicly. If
they allowed to get away with one abuse, the next one may be bigger, and so on.
If the way that “Democracy in Brent” is conducted is of interest to you,
the full text of the Council’s reply to my email of 5 April, and of my response
to it, are set out below.
Email from Brent Council’s
Corporate Director of Governance at 9.03am on 8 April:
Dear Mr Grant
Thank you for your email.
I have looked at the section of the report to which you refer and also
had a discussion with the Chief Executive.
Although, as you rightly say, it forms part of a report addressed to
Cabinet signed off by an officer, the Cabinet Member
Foreword in the report is separated from the main body of the report and
clearly provided by the councillor and not by the officer who has signed off
the report.
Leaving aside the question of whether there would otherwise be an issue
in relation to the publicity related provisions to which you refer, I would
point out that they arise under Part II of the Local Government Act 1986. Section 6 (7) of that Part of that Act
states:
(7) Nothing in this Part shall be construed as
applying to anything done by a person in the discharge of any duties under
regulations made under section 22 of the Local Government Act 2000 (access to
information etc.)
These are regulations relating to publication of papers for, and
admission to, meetings of the council’s Executive (Cabinet) and its committees
and related matters.
The purpose of the introduction of the Cabinet Member Foreword was to
provide an opportunity for the council policy context of decisions to be made
explicit in reports to Cabinet by the Cabinet Member who is accountable for
initiating and implementing council policies within the relevant portfolio.
I am happy to remind officers signing off reports of this intention.
Best wishes
Debra
My response to that email at 11.50am on 10 April:
This is an Open Email
Dear Ms Norman,
Thank you for your email on Monday morning, 8 April.
I have considered it carefully, and have studied the legislation and
Statutory Instruments arising from the main point you made on Section 6(7)
LGA1986.
1. Your claim that ‘the Cabinet Member Foreword
in the report is separated from the main body of the report’ does not stand up
to scrutiny. Yes, it is headed Cabinet Officer Foreword, but it is subsection
3.1 of section 3 “Detail” in the middle of a document which, as I pointed out,
is the ‘Report from the Interim Corporate Director of Communities &
Regeneration’.
2.0 I admit that I had not considered the
possible effect of Section 6(7) LGA1986 on the points I raised in my complaint
email to you on 5 April. For that, I apologise. You appear to have used this to
justify avoiding any answer over the content of the Cabinet Member Foreword being
political material. But is Section 6(7) the “loophole” which allows that
otherwise prohibited material to be published?
2.1 For ease of reference, I will copy that paragraph
again here, but I have emphasised some of the key wording:
‘(7) Nothing in this Part shall be construed as
applying to anything done by a person in the discharge of any duties
under regulations made under section 22 of the Local Government Act 2000
(access to information etc.)’
Those regulations are set out in The Local Authorities (Executive
Arrangements) (Access to Information) (England) Regulations 2000 (S.I.
2000/3272) [“the Regulations”]. Under the Regulations, the executive (in this case,
Brent’s Cabinet) is the “decision making body”, an individual member of the
executive can be a “decision maker”, and the duties of decision makers,
either collective or individual, are to make “executive decisions”.
Paragraph 11 of the Regulations, “Access to agenda and connected reports”
begins by stating:
‘(1) Subject to paragraph (2), a copy of the agenda
and every report for a public meeting shall be available for inspection by the
public at the offices of the local authority when they are made available to
the members of the executive or decision making body responsible for making the
decision to which they relate.’
Subsequent sub-paragraphs make it clear that providing those reports,
and managing public access to them, is part of the duties of officers of
the Local Authority.
2.2 This is also reflected in Brent’s own
Constitution. Paragraph 3 in Part 1 illustrates the clear distinction between
the roles and duties of Cabinet members and Council officers, and states:
‘The Cabinet is responsible for putting policies,
which Full Council has approved, into effect. The Cabinet is the part of the
Council which is responsible for most of the Council’s day-to-day decision
making not delegated to officers.’
Standing Order 13 in Part 2, “Meetings and Decisions of the Cabinet and
Cabinet Committees”, includes these provisions:
‘(e) Any decision taken by the Cabinet or by
Cabinet Committees shall be taken following the consideration of a written
report and after having taken into account all legal, financial and other
relevant implications, the responses to any consultation and the comments
received from the relevant Scrutiny Committee and any previous meeting of Full
Council where the matter the subject of the decision was considered.
(f) Any decision of the Cabinet or Cabinet
Committees shall be taken in accordance with all current legislation, these
Standing Orders and the other applicable rules contained in the Constitution.’
The report which the Cabinet must consider is written by Council
Officers, and signed off by the Corporate Director responsible for the
Department which deals with the report’s subject matter. That is done ‘in the
discharge of’ that officer’s duties.
2.3 It is not part of a Cabinet member’s duties,
even a Lead Member’s duties, to write part of such a report. Their duty is to
consider the written report, which provides all of the information they need in
order to make their decision. For that reason, I do not believe that Section
6(7) LGA1986, applies in this case, so that the Cabinet Member Foreword in the report
is still subject to, and breaches, Section 2 LGA1986.
3.0 I wrote that I could see no valid reason for
Cabinet Member Forewords in Officer Reports to Cabinet. You have provided the
following explanation:
‘The purpose of the introduction of the Cabinet
Member Foreword was to provide an opportunity for the council policy context of
decisions to be made explicit in reports to Cabinet by the Cabinet Member who
is accountable for initiating and implementing council policies within the
relevant portfolio.’
3.1 However, section 3.2, “Contribution to
Borough Plan Priorities & Strategic Context”, of the very report we are
considering here, sets out the council policy context explicitly. It also does
so far better, and without the party political bias of Cllr. Tatler’s foreword.
3.2 The Report is about Strategic Community
Infrastructure Levy funding to deliver a new publicly accessible courtyard garden
and a community centre at the Council’s Cecil Avenue development, part of the
Wembley Housing Zone. It is not about the housing project as such, but para.
3.1.3. of the foreword, in particular, concentrates on housing, beginning: ‘The
housing crisis did not begin yesterday ….’
3.3 In this part of her foreword, the Lead
Member for Regeneration, is putting forward views which appear to be different
from the adopted Council policy she is meant to promote and deliver. Brent
Council’s housing policy, is set out in Strategic Priority 1, “Prosperity and
Stability in Brent”, of the Borough Plan 2023-2027. The key references are:
‘We will create more accessible and genuinely
affordable housing. We want to be the leaders in London for inclusive housing
development that works better for everyone. This means buying houses; building
new social, accessible and affordable homes and improving our existing estates.
We will also continue working with partners to increase the supply of private
rented accommodation.’
‘DESIRED OUTCOME 2: Safe, Secure and Decent Housing
- We will continue with our pledge to deliver 1,000 new council homes and be
leaders in London in building inclusive and genuinely more affordable homes.
This includes our pledge to deliver 5,000 new affordable homes within the borough,
of which 1,700 will be directly delivered by the Council, by 2028.’
‘What Success Will Look Like - More council homes
and more temporary accommodation provided by the council. More genuinely
affordable and accessible homes available to families and residents.’
3.4 Cllr. Tatler’s version of the Council’s
housing policy is:
‘We have a moral imperative to do all in our power
to build more housing and communities that last long into the future. The
regeneration that underpins the Wembley Housing Zone, is exactly that – an
effort to build a better Brent, a place where home ownership is a reality,
not just a dream.’
I’ve used bold type again to emphasise what she is championing in her
Cabinet Member Foreword. Whereas the Council’s policy is to deliver new
genuinely affordable Council homes, Cllr. Tatler’s agenda appears to promote homes
for sale.
Sadly, that is what the Brent Council development, under her “Regeneration”
guidance, on Council-owned land at Cecil Avenue is actually going to deliver,
with 150 (out of 237) of the new homes there being built for private sale, and
only 56 as Council homes for genuinely affordable rent.
4.0 My email to you of 5 April suggested that
the inclusion of Cabinet Member Forewords in Officer Reports to Cabinet should
be reviewed, because I could see no valid reason for them. I think that our
correspondence has confirmed that view (see 3.0 and 3.1 above), and I hope that
you and the Chief Executive, to whom I am copying this, will initiate that
review and publish its results.
4.1 Another reason why such Forewords are
unnecessary, given in my email of 5 April, was because: ‘the Lead Member has
the opportunity to make any additional comments she/he may wish to when
introducing the agenda item at the Cabinet meeting.’
Cllr. Tatler proved this point at the Cabinet meeting on 8 April, when
in introducing item 9 she read out large extracts from her Cabinet Member
Foreword, including the claim about ‘a Labour pledge met.’ The evidence is on
the webcast, published on Brent Council’s website.
4.2 If ‘the Cabinet Member who is accountable
for initiating and implementing council policies within the relevant portfolio’
wishes to put their view on what those policies are to her or his colleagues,
in writing and in advance of the formal Cabinet meeting, they can circulate
their own document to their Cabinet colleagues. Those views should not be
included in a Report by a Council Officer, on which the Cabinet is being asked
to make a decision.
4.3 That is especially true if the Cabinet member has included political
material, which the Council is prohibited from publishing, as part of their
“Foreword”.
In view of the above, hope you will be happy to advise officers signing
off reports to Cabinet that they should not, in future, include Cabinet Member
Forewords in those reports.
I look forward to receiving your confirmation of this.
Best wishes,
Philip Grant.
