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Historic moment for English Councils?

Will they be wise enough to engage local

people and other stakeholders in local lockdown decisions?

 

Background

For thirty years or more, local authorities have been campaigning for more powers.  

Something that would convince their electorates that the Councils really mattered.

That it would be worth turning out to vote for …

Neither Localism (2010-2011) nor Police & Crime Commissioners (2012) did the trick. Elected Mayors in Combined authorities may have helped a little, but when the lockdown came, the need for speed meant that local authorities were frozen out of any decision-making. In addition, the Government provided little to no substantive support to offset income lost due to the virus.

Now, suddenly, as we emerge from Lockdown, the Government hands them important powers, that can instantly and drastically impact the lives of almost everyone in their area. Below we detail what some of these may be, but experience from the Spring of this year demonstrates how critical are decisions to open or close schools, shut down businesses or restrict travel.

Cynics may argue that this can easily become an exercise in blame-shifting. Others will view this as overdue recognition that the next phase can only be successfully managed at a local level, and with clear local accountability. Whatever the motive, the moment is significant and poses a real challenge for elected members and officials. The phrase ‘Beware of what you ask for’ springs to mind.

Stephen Hill now summarises the main changes announced by the Government

New powers  … and existing ones !

The powers in the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 amount to three separate authorisations for top-tier local authorities to give directions, subject to several provisos. The directions may be summed up as follows:

  1. Directions relating to individual premises (reg 4)
    1. Cannot apply to ‘essential infrastructure’
    2. Local authorities must ‘have regard to’ access to essential services
  2. Directions relating to events (reg 5)
    1. May apply either to a specific event, or to a whole category of events
    2. Events may be described by:
      1. Number of people attending
      2. Requirement for medical or emergency services to attend
      3. In any other way
    3. Directions relating to public outdoor places (reg 6)
      1. May apply to either a specific public outdoor place, or a whole category of public outdoor places
      2. Place and timings of direction must be clearly defined
      3. Advance notice must be given
      4. Illegal to be in the specified place without ‘reasonable excuse’

Any decision to impose these restrictions must be a ‘necessary and proportionate response’ to a ‘serious and imminent public health threat’ and is appealable to the Magistrates’ Court. Restrictions must be reviewed every seven days, and if they fail to meet the ‘necessary and proportionate’ test, they must be terminated or replaced. Curiously, local authorities must only ‘have regard’ to advice of their Director of Public Health, as opposed to having a duty to take advice from, in the same manner as the duty upon the Secretary of State. Enforcement of decisions under the new regulations is delegated to police officers or ‘local authority designated officers’.

Where do these new powers fit within the broader ‘Contain’ framework? The framework itself is largely a bringing together of multiple other resources and plans into one cohesive document, and this streamlining is also represented in the new powers. Although Councils have long had certain powers to impose restrictions over people, things and places on public health grounds, deriving from the Public Health (Control of Disease) Act 1984 (PHA), these powers were exercisable only by a magistrate, meaning that to make an order a local authority first had to apply to a magistrate. The new powers under the regulations represent a simplified inversion of this procedure. Councils may now impose an order unilaterally, which may be appealed to a Magistrate. This represents a significant change in how these powers could be used.

The change in the new powers does not, it is important to note, represent an abrogation of Ministerial responsibility. Ministers retain powers to do much the same as the new powers being granted to Councils, and pointedly retain the ability to order Councils to act. Representations may also be made by those subject to regulations to the Minister responsible. On a larger scale, Ministers also retain their general powers under the PHA, the powers that were used at the start of the pandemic to launch the initial lockdown.

Although there is little direct mention in the framework of consultation and engagement in the usage of these powers, and no legal obligation upon local authorities to do so, the framework does make mention of the importance of building on existing practice with the establishment of a ‘Local Outbreak Control Board’ to provide public engagement and a link between decision-makers and stakeholders. It seems unlikely that discrete consultations before the imposition of directions would be possible in light of their emergency nature, so might a rolling process of consultation and engagement form a better model for the conscientious council?

Implications

It is important to note that these powers apply to top-tier Councils in England. For all Councils, however, the public may well now start believing that lockdown exit decisions come from their local Councils. The normal confusion of roles in two-tier England will therefore surely arise. In two tier areas county councils will have to work closely with district councils (specific provisions are made for this in the regulations) and everywhere town and parish councils may yet have a role to play.

Local authorities have an excellent track record in public health management including local track and trace. They now need more powers, including the power to isolate. They are closer to and understand their communities in a way the central Government will never be able to. To help local government exercise their new powers effectively, there will be a need for better information management. Councils must have access to what they have been terming ‘granular’ data. Without it, all the new powers in the world seem unlikely to help.

The provision of this data is only one of the key roles that central Government must play. In addition to supporting the data infrastructure, if the Government wants local lockdowns to be sustainable, then more support will be needed for already cash-strapped councils to compensate and bolster local businesses and organisations that lose income.

Here are three implications:

  1. The public will believe it has a greater say in the decisions.

It may sometimes be hard to believe, but on the whole, in a crisis, they trust central government to be a professional set of decision-makers, but the government has been losing this trust. They also accept that blanket restrictions where ‘we are all in this together’ is fair and apply fairly. Councils have a more mixed reputation, and are, in any case much closer to the Town Hall, and potentially open to influence.

  1. Councils will need better data and better communications.

The new rules are complicated with considerable need for Councils to work alongside other key functions such as the NHS, Public Health England and others. In particular they must solve the current problems over delayed or imprecise data. Councillors will not want to be the fall guys for mistakes in other organisations’ data. They need daily data based on individuals. Disseminating information will also be crucial; clear messages will be needed if only to be in contrast to what many perceive to be confused or mixed messages from the centre

  1. Councils will wish to be seen to be listening.

Having criticised central government for top-down decision-making, Councils will need to demonstrate transparency and accountability. If they do not already possess first-class machinery for continuous engagement, now is the time to create it. Businesses – normally apathetic in towns and cities, now need a coherent voice in the ear of Council Cabinets. Voluntary and Community Groups likewise, and especially, seldom-heard groups and specialists communities of interest

  1. Councils will need to explain clearly what powers they have and what they do not have.

The problem with powers such as these is that they can blur the boundaries between decision-makers, particularly in light of a somewhat apathetic public that does not have a clear view of the complexities of government. For Councils, ensuring that their citizens have the accurate information they need will prevent Councils from being held responsible for things that in actuality they have no control over

It would be nice to imagine that the pandemic will steadily decline and make the exercise of these powers less and less likely. Such optimism is not much in evidence. But, just because they are a contingency – for circumstances that we all hope will not arise, it is no reason to ignore our four implications.

In the coming days, the Institute will be seeking views on current and foreseeable best practice with a view to preparing a set of practical guidance on how to manage the engagement and consultation aspects of these important issues.

We welcome comments and suggestions.

Rhion H Jones

Stephen Hill

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