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Decisions demolished

The mayor of London acted irrationally when refusing to withdraw a statutory waste direction issued to the London Borough of Enfield, following a planning inquiry in which the issue was addressed. So said the Court of Appeal on 18 March in R (Enfield London Borough Council) v Mayor of London [2008] EWCA Civ 202.



Enfield had decided to close the smaller of two recycling centres and sell it to a developer for housing. The mayor's direction was issued under section 356 of the Greater London Authority Act 1999, and required Enfield to make 'appropriate compensatory provision' for the closure by providing a new site within the borough. The mayor's arguments were fully canvassed before the planning inspector in determining the developer's planning application. The arguments were rejected with full reasons on the basis that the other council facility, together with its improved waste management services, would provide 'appropriate compensatory provision'. The secretary of state subsequently granted planning permission, adopting and confirming the inspector's conclusions, and the mayor did not appeal this decision. However, as indicated, the mayor refused to withdraw the direction.



The court took the view that the mayor was bound by the decision of the secretary of state, since this had been reached after due process in a properly constituted statutory adjudication, which had addressed the particular issue and concluded that the mayor was wrong. Furthermore, there was no additional reason not considered by the inspector that would justify a different conclusion. The mayor's decision was therefore untenable once its underlying justification had been subject to independent adjudicative scrutiny. In the circumstances, the mayor's decision not to withdraw the direction was irrational.



This case does illustrate the health check provided by the courts on the exercise of public power. For, while within the law individuals can behave as irrationally as they like, those exercising public functions must do so properly in the public interest. So, as a key part of the suite of subliminal public law checks - lawful authority, consonance with the proper statutory purpose, convention rights, fiduciary duty - decisions must be rationally based. If not, a judicial survey is likely to point to quicksand foundations and order demolition.





Lean times ahead?

Chasing efficiency and effectiveness in local government has been a bit like the old 'Stop the Pigeon' cartoon: lots of whizz-bang ideas and machines, which make a lot of noise but leave the pigeon unscathed. However, that might be about to change.



Dr Carlton Brand, director of resources at Wiltshire County Council (with responsibilities including legal and democratic services), is an enthusiastic and informed advocate of 'lean management' techniques and he has been implementing these to good effect in Wiltshire. The lean approach has its roots in the Toyota production system, with a focus on the elimination of waste and smoothness of service flow. The idea is to design public services around the customer and not the service provider.



Writing in February 2008 with John Seddon in Public Money and Management (Systems Thinking and Public Sector Performance), he identified the two major types of service organisation demand as being: value demand - a demand for a service or help in solving a problem; and failure demand - contact caused by failure in the service offered. The authors point out that 80% or more of local authority call centre demand is caused by service failure or shortfall. And, while these call centres were created under government mandate, in many cases, the authors, say these centres 'simply absorbed the waste created by poor services and institutionalised it'.



We therefore need to understand what is not working for citizens and to highlight service improvement priorities to stop the calls coming in. For example, using this approach, delivery times for Wiltshire's disability parking permit system moved from 55 days to a one-day or next-day service. Local government lawyers and other professionals will have a key role to play in helping get their authorities 'lean and mean'. As Brand has indicated, local authority professionals often operate in service 'silos', not as part of a unified and cohesive system. Service events tend to be a series of transactions passed between departments, resulting in substantial waste and delay for customers. This idea looks like it will fly and actually manage to catch that elusive inefficiency pigeon.





Conduct regime goes local

Having been caught up in government legal and administrative traffic, the new councillor conduct regime is now set to start on 8 May, following the May local elections. While the core legal framework has been around since October 2007 (see part 10 of the Local Government and Public Involvement in Health Act 2007), for a long time there has been an empty spotlight on where the relevant start-up machinery should have been. However, in line with the 3 April announcement to Parliament by local government minister John Healey, the government has now wheeled out The Standards Committee (England) Regulations 2008 SI 2008 No. 1085 for a 8 May start-up.



As the minister pointed out: 'From this point, all allegations of misconduct by council members will in the first instance be considered by the council's standards committee, which may thereafter pass the most serious cases to the standards board.' The regulations are intended (among other things): to address the avoidance of any conflicts of interest when considering allegations; to prevent public access during the initial assessment of allegations; and to increase the maximum sanction available to standards committees from three to six months' suspension from office. In future, councillors alleged to have breached the conduct code will be judged in the first instance by those with closer understanding of the local scene. However, it remains to be seen how these changes will affect stretched local authority monitoring officers.



Talking of conduct, councillor behaviour seems to have improved since the birth of the standards board. So indicated a BMG survey, conducted on behalf of the board during November and December 2007. Many respondents to the survey felt that there had been a 'marked reduction in examples of serious and flagrant misbehaviour such as misuse of authority resources for election campaigns and abuse of expenses'. However, most obvious was a more respectful use of language during meetings, less bullying and more routine disclosure of prejudicial interests.



The report assigns this florescence of virtue to the existence of the Code of Conduct and high levels of awareness of the rules of behaviour. Nevertheless, conduct apparently takes a turn for the worse at election times and during heated debates, such as those surrounding the budget process. But it seems chairpersons and journalists must also share some of the blame for any outbursts of municipal delinquency - councillor conduct also takes a dip 'during fiery meetings which are not chaired sufficiently strictly, or are attended by newspaper journalists'.





Byelaws

As professional low-level local nuisance makers will painfully appreciate, local authorities have long had byelaw-making powers through part XI of the Local Government Act 1972. However, these are subject to confirmation by the secretary of state: that is, council proposes, government disposes. But that is set to change when the legal implants inserted into the 1972 act by part 6 of the Local Government and Public Involvement in Health Act 2007 take effect. These will enable authorities to enact prescribed classes of byelaws (such as after advertising and consultation) without ministerial confirmation. Fixed penalties will also be available for prescribed byelaw classes.



However, this does not mean that authorities will be able to behave like Lewis Carroll's Queen of Hearts. Byelaws are subject to a suite of common law and convention rights principles. At common law, byelaws must: be reasonable; have certainty of terms; be consistent with the general law; and be intra vires the enabling statute. Under convention jurisprudence, now effectively part of UK law following the Human Rights Act 1998, any 'prior restraint on freedom of expression calls for the most careful scrutiny' (see Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55). The relevant questions are those adopted by Lord Steyn in R (Daly) v Home Secretary [2001] UKHL 26: 'Whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'



In the light of these principles, the Divisional Court on 6 March 2008 quashed a byelaw made by the secretary of state for defence: 7(2)(g) of The Atomic Weapons Establishment Aldermaston Byelaws 2007 SI 2007 No. 1066. This required no one within the 'controlled areas' to 'attach any thing to, or place any thing over any wall, fence, structure or other surface'. The court considered that this broad prohibition infringed common law principles since it would 'prohibit a visitor from sitting on a fixed bench and placing a pullover over the seat or the back of the bench, or a hiker from stopping at the monument and placing a rucksack on a convenient surface at the base of the structure'. In the circumstances the byelaw was - as it were - nuked.