Monthly Archives: June 2009

Quote Unquote

The MJ diary / endpage / gossip column last week had a little bit of fun, presumably at David Cameron’s expense, and noted the apparent similarity between the following two quotes.

  • Through a new general power of competence Councils will be able to do whatever they like as long as it’s legal
  • We shall give a power of general competence to all local authorities to carry out whatever activities are not expressly forbidden by statute

The first was recently said by David Cameron in an article in the Guardian. The second is from the Labour Party’s roaringly successful and widely praised 1983 Manifesto.  I’m being silly really, obviously I think it’s a good idea. I thought (hoped) it was what the Government had almost done with the power of wellbeing and associated rules, but recent events suggest the battle is at best half-won.

For completeness, I thought it worthwhile remembering what the Government of the day thought about those plans – that John Denham has not yet said anything like this could be counted as progress I suppose, although I anticipate there are many in the Conservative Party who still feel this way, and will surface if the national and local swing operates in the traditional British way.

In other words, a blank cheque. A socialist council could spend your money on anything it liked unless there was a law forbidding it. I leave to your imagination the crackpot schemes, the waste of money and the gigantic leap in expenditure” – Margaret Thatcher, 3rd June 1983

Of course in the same speech she talked about the importance of central government driving local government structural reorganisation. What price Eric Pickles’ pearl handled revolver then? Who knows, perhaps as a humble committee member on Bradford Council he was quite favourable to the abolition of the West Riding, perhaps not!

Win one for the kippers

I hope those UKIP Councillors elected earlier this month (Nelson ward in Norfolk seems as appropriate a place as any for them to top the poll) are settling in well to their new positions in elected local government, and finding good ways to make the link between the problems and challenges faced by their local authority in delivering for the people they represent, and the UK’s membership of the European Union. I worry that they are going to find a lot of Council business quite tedious if they aren’t especially interested in the rest of it, but they have their experience as residents to draw on, and Greens around the country have managed to engage with issues which aren’t really ‘environmental’ in any real sense, so who knows.

I thought this might be a good time to help them make one of those links – indeed I’m a little puzzled that it hasn’t already been made more widely – it might just be a really tedious story. Last week there was a rather unfortunate decision in a case before the Court of Appeal (Brent London Borough Council v Risk Management Partners Ltd) which in essence said that local authorities were not allowed to form partnerships with one another without going through the tendering process which they would employ if they were considering outsourcing a function to the private sector.

In brief, a group of London councils believed they could get better value for money from their insurance by clubbing together to self-insure than by buying insurance from the private sector. This is often likely to be true, since insurance is in pure mathematical terms irrational – the “expected value” for each individual is less than you get out, much like betting on horses. The advantage is being protected against large risks for a small guaranteed loss.

Understandably however, a private sector provider was unhappy that the tendering process had been halted and went to court seeking compensation. This recent ruling upheld one which awarded them such compensation, on the basis that halting the tendering process was a breach of the Public Contracts Regulations 2006. Now, I am open to the argument that if a Council is not going to deliver a service directly it should consider all possible providers. However I think there are a number of reasons this is not ‘the whole story’.

Firstly, the public sector (more broadly than local government) is hugely outgunned on procurement. While great strides have been made, big contracts still often see a local authority negotiator on a ‘politically acceptable’ salary of say £60k facing up against a far more experienced private sector ‘client relationship manager’ who is perhaps on the same wage but with the potential to more than double it through commission. The only time I’ve ever been confident in my own work that our lead negotiator on a large contract was really the top player on the field was when we had a very wealthy retired accountant who came in for a far lower wage than he could have commanded elsewhere, because he “thought it might be a fun experience”. Secondly, some private sector organisations overpromise and underdeliver to the public sector, knowing that it is politically and administratively difficult to break certain contracts.

Thirdly, and most importantly, partnership between public sector organisations is, in my view, a qualitatively different thing from outsourcing, for all sorts of reasons of staff morale, democratic accountability, and political acceptability. Whether we are talking about the Sustainable Communities Act, or the Total Place initiative, or David Cameron’s suggestions about pooling local funding for public services, there is progress to be made beyond simply an old model of ‘putting it out to tender’.

Consequently I am not terribly happy about this judgement – I think it puts at risk a number of important initiatives, and so do other people in the field. For example Michael Burton, Editor of the MJ (which used to stand for Municipal Journal but I think it now stand-alone, like BP or YMCA) says the following on his blog – quoted at length because I think it’s important;

Among the pile of correspondence in new communities and local government secretary John Denham’s red boxes this week, the Appeal Court ruling over London Authorities’ Mutual Limited should be stamped ‘urgent: action this day.’

This otherwise obscure ruling over the legality of a new insurance consortium of London boroughs threatens to undermine the entire direction of public sector partnership working by blocking the use of long-established wellbeing powers.

However, the Appeal Court maintains that councils do not have the powers to set up such an entity as LAML, even though it has the support of the CLG, and says that neither the 1972 nor the 2000 Local Government Acts give such legality.

Critics in turn argue that this is a narrow interpretation of this legislation and is a return to the 1980s when councils needed express powers to act and if they did not were ruled ultra vires. The whole point of wellbeing is to allow councils to do anything which is not expressly forbidden, precisely to allow them to be more pro-active and innovative.

John Healey, before he was moved to housing, made a point of telling councils they have these powers, and should just get on and use them, especially when grappling with the recession. Some lawyers said it was not quite as simple as that and the Appeal Court agrees with them. It has turned the clock back and done councils, and residents, no favours. Its ruling must be overturned.

Which is all well and good, and I entirely agree. However (and I’m sorry if this doesn’t quite live up to my billing), it’s not open to the Minister to reverse that ruling. Indeed it’s almost certainly not up to Parliament to reverse that ruling either, because the Public Contracts Regulations 2006 which are getting the blame here are not domestically inspired legislation. They exist to give effect to EC Directive 2004/18 and its predecessors, “on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts [in the EU]”.

Now, there may be UK gold-plating of that directive (though it looks pretty clear to me), or there may be a public policy decision that the benefit to UK private sector companies in being able to compete for public tenders elsewhere in the EU outweighs the inconvenience to the UK public sector in being unable to form public-sector-only partnerships. I don’t know. Nonetheless, I think it is important when we look at what impact legislation is having, to understand at what level that legislation is made, and who does and does not have the power to change it.

Night, Jack

This is unhelpful on a fairly fundamental level to people like me. Though I’m very much on the side of my employer on almost every issue, and don’t know the kind of exciting secrets that anyone would wish to hear, I enjoy reading blogs by people working on the real front line of public services. I am particularly aware of the value those have in bringing to light the reality behind the debates, targets, and tractor production statistics that public services often become in Westminster and Whitehall.

I worry that the reasons given for clamping down on public sector bloggers (and shame, shame and thrice shame on The Times for being an instrument of Nightjack’s downfall) has as much to do with the power some of those bloggers have to communicate with the public over the head of politicians – to tell them that they aren’t mad when they think police targets and procedures are skewed and get in the way of real crime prevention and detection, or that access to healthcare services doesn’t run on the 48-hours to see a GP and 2-weeks to see a consultant who you can “choose and book” model – as it does with the stated reasons.

We have protection, up to the point of statute, for public sector whistleblowers who want to draw the attention of those in positions of influence to wrongdoing by going over the heads of their direct managers, and if necessary to the media. Why do we have nothing to protect those who want to draw the attention of the public at large to whole-system failure? The judge ruled that the public interest in Nightjack’s name was an overriding factor. What about the public interest in hearing about how their taxes are being spent, and how they are or are not being protected from crime?

Hopi proposes an e-mail campaign asking The Times to apologise. I endorse this product and / or service.

Non-arguments about “non-jobs”

Councils employ a vast range of people to do a vast range of things, and it appears to me that there is a huge gap between perception and reality in terms of which of those jobs are most useful, and the relative cost of them to the taxpayer. I keep meaning to write a detailed post about this, but first there is a very specific point raised today at ConservativeHome‘s Local Government page. While generally taking in the range of Conservative opinion, this is a good place for anyone with an interest in local government issues to keep up with interesting thoughts and opinions – I say that not only because they gave me a guest column, it’s genuinely true.

I am concerned that the debate is pointing in the wrong direction with a post today however – it very clearly illustrates a problem, but also contains a wood which I suspect could be seen more clearly if some of the trees were not in the way. The post in question  berates Boris Johnson for continuing to employ a large number of diversity officers, and in particular scoffs at his explanation that they are useful for the Authority in working towards the promotion of integration. The view of the author is that rather than promoting integration, diversity officers promote division and a grievance culture.

Now, it is entirely possible that in some – or even many, I have no idea – cases, diversity officers do that. It may perfectly well be that the GLA doesn’t need the number of diversity officers it has, or even that it could get away without having any. I suspect that as well as meeting (sometime arbitrary, sometimes governmental, sometimes logical) targets around diversity of employees, equality of senior appointment between genders, and so on, a large part of the case for diversity officers is not just to have the job done, but to create a ‘paper trail’ at which the authority can point in the event of a legal challenge to their recruitment or pay policies.

A diversity officer job description could equally be written to recruit someone who spends their time on activities of which the writer would approve (they may or may not approve enough to believe that it should be done with taxpayers’ money, but that’s not the issue at hand). Looking at ways to encourage the recruitment of young Muslim women into the workforce at Bradford Council might be condemned as ‘positive discrimination’, but it would certainly assist the ‘integration’ desired, if (to stereotype crudely) the alternative were that they overwhelmingly became non-working housewives with few contacts outside their community, while the Council’s staff were overwhelmingly white with similarly little integration. 

More prosaically a diversity officer might look at ways to champion English lessons for asylum seekers and new immigrants, looking at ways to promote and deliver these through the Council’s high contact rate with immigrant communities – through social workers, schools, housing offices, and so on. They might help deliver training for social workers on how to look out for the warning signs of forced marriage, and make it clear that in this country we expect young people to have the right to choose their own life partner, not have one chosen for them.

The same is true of regularly-maligned European Officers, which right-wing commentators generally describe as ‘taxpayer funded propagandists for European integration’. I have no doubt that some of them are, but equally there’s no need to hold any kind of fixed position on the merits or demerits of European integration (rant follows next week) to work for an authority monitoring the likely impact on local government of European legislation, attempting to persuade legislators to amend that legislation in a more sensible direction, and examining how the maximum amount of EU funding for desireable local projects can be extracted.

Which brings me to my final point. Boris says his diversity officers are there to promote integration. ConservativeHome says that in fact they promote separation. If that is the case (again, if, this post is rather hypothetical) then the problem is less with the diversity officers, and more with Boris not being in control of the authority he runs. If I employ someone to do X, and they in fact do Y, it seems incumbent on me to look in more detail at how the problem has arisen, rather than simply to remove the post and cease doing X or Y.

If I employ someone to retile my kitchen floor, and in fact they repaint my bathroom wall, then it’s possible they’re an idiot – but it’s equally possible I am not capable of giving clear instructions, or that my instructions are not respected, or that there is a chain of command which breaks down somewhere between planning and execution – and any of those would be a problem on a much larger and more urgent scale than the employment of a few people with funny job titles.

A little farther down the line

Many good and experienced Councillors were re-elected across the country last week, and all who work with them, or are served by them, have cause to be grateful. Many new Councillors were also elected for the first time, and I’m already optimistic that they will bring fresh energy and ideas to their Councils. Many other Councillors chose to stand down after many years of local service, and I wish them a happy and deserved retirement.

Some Councillors were unceremoniously dumped by the electorate – some because they hadn’t been up to the job, but many more because of the vagaries of national politics. Labour candidates losing because their party in Westminster is profoundly unpopular; Conservative candidates losing because their local MP’s expenses were plastered across the local newspaper on election day, or Liberal Democrat candidates losing because the coincidence of European Elections raised the profile of enough other parties that the traditional “third option” became a third, fourth, or fifth option.

Those Councillors have my sympathy, and if officers in their authorities are anything like me, it is likely many people will miss their advice, wisdom, and support. I’m generally opposed to holding local elections on the same day as national or transnational elections where possible, since it reduces the local element of the campaign – of which there is often precious little enough already! Still, turnover is the way of politics – the passengers change at each station, but the democracy train keeps rolling on.

In happier news, we have a Secretary of State for Communities and Local Government who served for twelve years as an elected Councillor, with a particular interest in the increasingly vital policy area of affordable and decent housing, and who has shown imagination and independent-mindedness in the past. Whatever anyone’s views of the Government or its policies, it is hard to argue that the Department is not getting at least its fair share of the talent. None of which means that they will be able to take the right decisions unless they and the Government more generally are kept informed and under pressure by local councils, individually and collectively. 

We also, obviously, have more Conservatives than before actively involved in local government, and assuming the general election goes the way it is widely expected to, that must be promising for ensuring that the Conservatives stick to their promises about devolution, and for establishing another clear channel of communication between local and national policy, which currently often functions more effectively on the officer / civil servant side than it does on the Councillor / MP / Minister side.

I am very much conflicted at the moment about local government’s prospects. I am more optimistic about the chances of getting the national policy right than I have been for some time, but more terrified than ever about the size of the gap between how much money is going to be available (substantially less), and what we are going to be expected to deliver (ever more quality, variety, and volume).

Good luck!

To any readers partaking in tomorrow’s elections as candidates or organisers, and to any who have been given the job of helping new Councillors and administrations turn their ideas, enthusiasm, and manifestos into policy and action.