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ADHOC SCRUTINY PANEL ON COMMUNITY ENGAGEMENT

17th NOVEMBER 2004

Public Consultation – an overview of statutory requirements

PURPOSE OF THE NOTE

1.This is the first in a series of notes about public consultation and engagement activity. It seeks to give an overview of the statutory requirements for undertaking public consultation and engagement that apply to local authorities and to highlight recent legislative developments.

BACKGROUND

2.Councils have always been required, through legistlation, to consult the public on issues. These requirements have generally related to specific decisions, plans or arrangements. The majority of these relate to proposals that affect local people either living in specific areas (for example a planning application/decision) or using or participating in particular services (for a example a school closure). Historically few plans or strategies have been subject to statutory public consultation requirements, exceptions to this have been local structure plans and development plans.

3.During the 1990s local authorities were encouraged to engage more effectively with local people. Drivers for this included the increasing profile of environmental issues and the sustainable development agenda. Another high profile local example was the local government reorganisation process during 1994 and 1995 that led to the abolition of Cleveland County Council, which saw extensive public consultation.

4.The election of the current government and its modernisation plans for local government saw the profile and role of public consultation increase significantly. The government saw consultation as a key tool for service improvement and democratic renewal. The key developments are set out in the following section.

KEY DEVELOPMENTS FROM THE LATE 1990’s

5.In the late 1990s a White Paper on local government very much changed how local authorities were required to undertake and use public consultation. Model local government: In touch with the people was published in 1998 and set out the government’s plan for modernising local government. Key elements of the white paper included:

  • New political structures and improving local democracy;
  • Improving local financial accountability;
  • A new ethical framework;
  • Improving local services through best value; and
  • Promoting the well-being of communities.

6.This was followed by further white papers, including Local leadership, local choice (1998) and Stronger Local Leadership: Quality Public Services (2001), all of which have informed the two key pieces of local government legislation of recent times the 1999 and 2000 Local Government Acts.

7.Public consultation and engagement was central to the improvement and modernisation programme for which these acts laid the ground. Similar approaches can be seen in other areas of the public sector, for example the health service through the Health and Social Care Act 2001, and the police service, through the Crime and Disorder Act 1998. Both these pieces of legislation listed are also of relevance to local authorities, with provisions requiring public consultation.

8.The government saw public consultation and engagement as central to the delivery of this modernisation and improvement programme. The following were key to the thinking behind this:

  • Service improvement was to be driven by a real understanding of public needs;
  • understanding public needs ensured that the service delivery could be undertaken more efficiently and effectively;
  • Information from public consultation could be used to benchmark and monitor service delivery – helping to identify problems and drive improvement; and
  • Citizen / user involvement was important in engaging people in local decision making and strengthening Council roles and local democracy more generally.

9.The Local Government Act 1999 was a sea change in central government’s approach to locally led consultation. The act introduced the best value regime and imposed as a statutory duty to “secure continuous improvement in the way its functions are exercised” and, in doing this, to consult with:

  • Council Tax payers
  • non-domestic ratepayers
  • current or potential service users
  • and other interested parties.

10.These provisions were much wider and all embracing than any previous requirements in local government they very clearly illustrate the government’s view that service improvement can only be delivered properly with an effective dialogue with service users and local people generally. They also sought to ensure that Council’s were more open and accountable in their service delivery.

11.The Local Government Act 2000 was less all embracing in its provisions however it was no less radical in some of the changes that it proposed. There were three key elements to the changes promoted through the act: -

  • The duty to promote and improve the economic, social and environmental well being of the area including the creation of community strategies.
  • Changes to the decision-making structures of local authorities.
  • Changes to the decision-making processors for local government to promote greater openness, involvement and accountability

12.This act resulted in a variety of consultation work to implement its measures and ongoing consultation work to comply with it.

13.The main consultation exercise required to take forward its provisions was on new decision-making structures. All Council’s were required to consult on new executive arrangements, central to this were the two mayoral options. Where consultation either demonstrated support for a mayoral option or was inconclusive, councils were required to hold referendums. To-date around thirty local referendums have taken place, with eleven resulting in support for mayoral executive arrangements. The new executive arrangements and the approach to consultation have certainly been controversial. Putting these issues to one side, the approach to implementation is important in terms of the development centrally prescribed local public consultation for a number of reasons:

  • The use of local referendums, something that there is not a tradition of either locally or nationally in the UK
  • The extent of the guidance that was issued to local authorities, setting out how consultation and refendums should be approached; and
  • The interest that central government took in examining the approach to consultation and challenging this where it felt it had been inadequate.

14.The other two key elements of the 2000 Act relate to the requirement to prepare Community Strategies, and as a result the establishment of Local Strategic Partnerships, and the operation of new executive arrangements. The former is not unprecedented in terms of requiring consultation on a document and requiring a range of individuals and groups to participate in body or committee. What is different is the scope of both the document and the body, promoting the economic, social and environmental well-being of the locality. A range of consultation techniques have been adopted by local government to develop and deliver this.

15.The operation of the new executive arrangements also has consultation and engagement at its core. Some elements are intended to promote greater transparency and provide the opportunity to engage. For example the publication of the executive’s forward plan and revised meeting notice requirements. Other elements require public consultation or engagement. For example, public participation at Council meetings, the preparation of policy framework documents and the overview and scrutiny process. The precise detail of many of these changes were to be determined locally however the provisions are far more extensive than any previously determined by statute.

Other Statutory Consultation requirements

16.Local authorities are required by law to undertake consultation on a wide range of specific decisions, plans or arrangements. The approach to these can vary greatly, from a requirement to place public notices informing local people of a proposal and giving the opportunity to comment, to a requirement to produce documentation, write to local people affected by a proposal or hold public meetings. Set out below are a number of brief examples of such statutory consultation:

  • Changes to schools – for example a change to status, a proposal to close or a proposal to merge. This process is regulated through statutory instrument and DfES guidance. Although this does state it is up to Council’s to determine the nature of their consultation, including whether to hold public meetings and to who they will issue letters, the guidance does include:
  • A requirement to demonstrate how views expressed during consultation have been taken into account;
  • A list of interested parties whom the secretary of state considers should be consulted;
  • A requirement that the consultation should have taken place not longer than 12 months before the publication of proposals;
  • A requirement to place a statutory notice about the proposals in a local newspaper, with details of the information that this must include; and
  • A requirement that interested parties should have six weeks to make representations on the proposals.
  • Local Transport Plans – these are produced every five years by local transport authorities. Department of Transport guidance emphasises the value of public consultation and the need for Councils to be inclusive, listing a range of potential consultees. However it does not prescribe the approach the Councils should take stating that “it is primarily for authorities to determine the mechanisms that will best achieve effective participation in their area”. It does however make reference to a variety of sources of good practice. There is also a requirement on authorities to include a section explaining how the public was involved in the plan’s development and how their comments have influenced the policies in the plan.
  • Public Entertainment Licences – Council’s have been issuing these for some time and will continue to do so under the new licensing regime. Under the old regime the statutory requirements for consultation or engagement were limited – the public could provide objections to the application, in writing, to the Council. These would be taken into account in determining the application. Applicants were required to display a copy of their application in a prominent position in or near their premises and to advertise their application in a local newpaper. Both notices must state how objections can be made to the application.

17.The above examples illustrate the range of approaches to consultation and engagement that are either explicitly required through primary legislation or that are expected as part of statutory processes, with elements to be determined locally.

CONCLUSIONS

18.This note has not sought to set out every statutory consultation or engagement requirement placed upon local authorities. This would be a very extensive task. It has attempted to give an overview of recent national developments and also to illustrate the range of requirements placed upon Councils for consultation on individual decisions and plans.

19.Central government considers that public consultation and engagement should now be at the heart of the work of local authorities. There are statutory requirements for this, as has been illustrated in the commentary on the 1999 and 2000 Local Government Acts, and there are no indications at present that there will be any significant change to this approach. There does tend to be a reasonable amount of flexibility in how local authorities can undertake consultation, provided they can demonstrate that this has been appropriate for the issue about which it is the subject and that it has been taken account of in developing policy or reaching a decision. The three papers that are due to be considered by the panel shortly set out in more detail Middlesbrough’s approach.

Author:John Polson, Partnership Manager

Telephone: (01642) 729017