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Decision-making by non-elected members: an analysis of new provisions in the 1972 Local Government Act
Published online by Cambridge University Press: 20 January 2009
Abstract
This paper draws attention to new provisions in the 1972 Local Government Act which enable non-elected persons to determine local authority policies, through their co-option on to sub-committees with delegated powers. It sets out these provisions in the light of previous legislation and discusses why they were introduced. It then points out one area of local authority administration in which they are likely to be implemented, involving new systems for tenant participation in council housing management. A concluding section raises some questions about the implications of these provisions for the legislative process in general, in particular the ability of legislative changes to have unintended consequences.
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References
1 The term ‘delegate’, replaced in the 1972 Act by the term ‘discharge a function’, may involve two types of decision: those which are subject to the confirmation of the parent body (called ‘referred powers’) and those which are effective without such confirmation (called ‘delegated powers’). The discussion in this article concerns delegated powers; as Cross, C. A. writes, ‘where a council delegates specific matters to committees…the decision of the committee is effective forthwith’, (principles of Local Government Law, London: Sweet and Maxwell, 1974, p. 64.)Google Scholar
2 1933 Local Government Act, s. 85.
3 SirHart, William O. and Garner, J. F., Hart's Introduction to the Low of Local Government and Administration, 9th ed., London: Butterworths, 1973, p. 138.Google Scholar
4 Op. cit. 5.85/(3).
5 1972 Local Government Act, s.101(6).
6 Hansard, Parliamentary debates (House of Commons, Official Report). Standing Committee D, 15 February 1972, Col. 1575.
7 Cross, C. A., Principles of Local Government Law, 5th ed., London: Sweet and Maxwell, 1974, p. 65.Google Scholar
8 Hart and Garner, op. cit. p. 144.
9 Ibid. p. iii.
10 Section 104 extends the provisions found in other sections of the Act concerning disqualification for membership of a local authority to membership of a council committee or sub-committee, including such categories as employees of the council, bankrupts, persons who have committed election offenses and so forth.
11 1972 Act, 5.102(3); italics added.
12 Cross, C. A., The Local Government Act 1972, London: Sweet and MaxwellCrossRefGoogle Scholar, Comments on Section 102.
13 The ability of sub-committees (as opposed to councils and committees) to delegate to officers was not in the original Bill, but was added at a later stage.
14 Hansard, Parliamentary debates (House of Commons, Official Report). Second Reading Debate. 16 November 1971Google Scholar, Cols 241–7 passim.
15 Report of the Study Group on Local Authority Management Structures, The New Local Authorities: Management and Structure, London: HMSO, 1971, p. 141.Google Scholar
16 Ibid. p. 34.
17 Ibid. p. 34.
18 Hart and Garner, op. cit. p. 143.
19 Report of the Committee: Management of Local Government, London: HMSO, 1967, p. 43 (Maud Report).Google Scholar
20 The management board, one of the main proposals of the Maud Committee, was to be composed of a small number of council members, whose functions included the formulation of the authority's principle objectives and means of obtaining them and certain decision-making powers as delegated by the council.
21 Maud Report, op. ctt. p. 43.
22 Ibid. p. 32–3.
23 Ibid. p. x.
24 Report of the Study Group on Local Authority Management Structures, op. cit. p. 134.
25 Maud Report, op. cit. p. 106.
26 Local Government Bill, Notes on Amendments (House of Commons), Report Stage.
27 Ibid., in Annex.
28 Hansard, Parliamentary Debates (House of Commons, Official Report) Standing Committee D, 15 February 1972Google Scholar, Cols. 1585–1586.
29 This information is based on a survey carried out by the author in 1975; for a fuller discussion of the survey results, see my article in Housing Monthly, September 1975.Google Scholar
30 The Housing Rents and Subsidies Act 1975, Schedule 1, Part 1, paragraph 9, enables local authorities to set up housing co-operatives and transfer the benefit of their housing subsidy.
31 Department of the Environment, Circular 8/76, London: HMSO, 16 January 1976. The first quotation is taken from the introduction, paragraph 4; the second quotation is taken from Annexe A (Suitable Conditions for Cooperatives), paragraph 6.