LG 1 - Welsh Local Government Association (WLGA)
Proposed Local Government Measure Committee – Consultation
Response from the Welsh Local Government Association
Introduction
1.The WLGA is pleased to have this opportunity to comment on the proposed Local Government (Wales) Measure.
2.Over recent years the WLGA has worked closely with the Assembly Government and other national partners in shaping the Wales Programme for Improvement (WPI) and supporting local authorities in applying it in practice. The introduction of the WPI is recognised to have established a distinctively Welsh interpretation and application of the provisions of the 1999 Local Government Act. This approach has evolved significantly since its inception, not least in response to the lessons that we have learned through experience. This learning process has been fuelled by widespread innovation encouraged by the flexibility over process that the WPI has allowed authorities to focus on the needs and aspirations of local communities.
3.The successes of the WPI have been underpinned by a powerful combination of principle and ambition. Whilst there have been differences of emphasis, both elements have been characterised by a broad and enduring degree of consensus amongst the national partners.
4.In this context, it is appropriate that the Assembly Government should seek to reform and reinforce the statutory basis on which the WPI is built and, in doing so, establish clear parameters for its continuing evolution.
5.In terms of this evolution, the WLGA would wish to note that there is scope to further align improvement and performance regimes across the public sector in Wales. Whilst this Proposed Measure focuses on the local government improvement regime only, Part II focuses on the community planning agenda including seeking to mainstream how public sector partners work together in the pursuit of commonly agreed or shared priorities. It is therefore appropriate, and increasingly apparent through the emerging Local Service Board process, that improvement and performance management regimes of public sector bodies should be more closely aligned to allow more effective synergies between organisations and clearer outcome-based accountabilities to the citizen.
6.It should be noted that the views expressed below are based on the WLGA and local authority responses to the ‘Delivering a Shared Responsibility’ consultation and emerging feedback from authorities since the Measure’s publication in September. WLGA members have not yet had the opportunity to formally consider the Measure, however, will receive a report at the Council meeting on 28th November. Should any additional proposals for consideration or amendment be raised, these will be subsequently forwarded to the Committee for consideration.
Principles and policy aspirations underlying the WLGA response
7.The WLGA recognises and has actively promoted the need to reinforce the links between the ‘improvement’ agenda and community planning in order to make these links more coherent and robust.
8.The WLGA has promoted the view that the overall purpose and direction of travel in this reform of the improvement regime should be towards an increasingly ‘community-centred’ view of performance and accordingly less bureaucratic or ‘organisation-centric’ focus in the way the authorities’ performance and other aspects of strategic risk are assessed, judged and regulated.
9.This view has generated resonance with colleagues in local authorities, the Assembly Government and other partners. Our common interests and ambitions in this regard are embedded within the current WPI. But we must continue to build on this.
10.A community-centred approach to strategic risk management in local government sees the core purpose and function of public service delivery and governance (at all levels) as being:
- to protect communities from the major factors and trends that are recognised to threaten their well-being and
- to make and take opportunities to enhance well-being and ensure its long term sustainability (see footnote 1 ).
Such aspirations and responsibilities should underlie all our plans and strategies at both national and local levels, and it is this focus that should shape and drive the improvement agenda in Welsh local government (and other public services).
11.Within this view, organisational-level ‘risks’, including the performance of local authorities in service delivery and all other aspects of their functions, together with capacity issues, failures of compliance with statutory duties, threats to reputation and financial risks, all remain significant; but, ultimately they only matter to the extent that they bear on local authorities’ ability to protect and enhance the well-being of the communities that they serve.
12.There have been encouraging indications of the emergence of such genuine community-focus and long-term thinking in strategic planning at local levels over recent years. Exercises such as the scenario-based strategic planning undertaken in Gwynedd (under the auspices of ‘Gwynedd Yfory’) have demonstrated the potential and there is more recent evidence that the establishment of Local Service Boards is giving added impetus to the development and application of such approaches, methods and techniques 2. Across Wales authorities such as Torfaen County Borough Council, with its recent development of an ‘outcome focussed public service framework’, are at the forefront of these developments.
13.The Assembly Government’s application of the Local Government Acts 1999 and 2000 and the development of the wider ‘Making the Connections’ agenda, have provided frameworks for such developments. Nevertheless, there is a widespread and persistent view that the roots of the WPI in the ‘Best Value’ regime initiated by the 1999 Act continue to be evident in ways that are not always helpful. This is evidenced in the Assembly Government’s Explanatory Memorandum.
14.In this context, political and organisational leadership, at Assembly Government and local authority levels and within the regulatory organisations, will be important in realising the ambitions that sit behind the proposed Measure. The WLGA will continue to work with the Assembly Government and other local and national partners to provide such leadership and establish effective methods of pursuing these shared ambitions. The methods through which we do this must be systematic and properly founded in the best available evidence. They must have coherence at a national level, but they must also be rooted in the experiences, values and aspirations of all sections of Welsh communities. They must draw on local resources, and focus on local differences and distinctiveness as well as common denominators at a national level.
15.The distinctive and central role of local government in this is clear. From the WLGA’s point of view it is important that the proposed Measure, and the further development of the WPI through subsequent statutory guidance, should provide a legislative and regulatory framework that supports this direction of travel rather than constrain or compromise local determination, innovation and leadership.
16.The following responses to the consultation questions contain a number of specific proposals for amendments to sections of the Measure.
Response to consultation questions
Question 1: Is there a need for legislation to reform:
- the statutory basis for service improvement by local authorities; and
- community planning and strategies?
17.There is a clear recognition within local government, the Assembly Government and regulators that the Wales Programme for Improvement has established itself as a successful, fit for purpose model to drive improvement within the terms of the 1999 Local Government Act. Notwithstanding this, the WLGA broadly welcomes the reforms set out in the proposed Measure.
18.The WLGA recognises the need to reinforce the statutory basis for the broad interpretation of the duty to make arrangements to secure ‘improvement’ that has been developed and expressed within the WPI.
19.The WLGA welcomes, with the exceptions expressed below, the extended powers that the proposal offers. In particular, we believe that the powers of ‘collaboration’ and ‘delegation’ for authorities set out in Sections 9, 10 & 11, together with the powers for Welsh Ministers of ‘support’ (Section 29) and ‘modification and conferral’ (Section 32), will offer significant new opportunities for authorities and the Assembly Government to create fresh scope for, and address current barriers to, improvement.
20.In welcoming these proposed powers, the WLGA however reiterates reservations about the powers of direction in relation to collaboration arrangements that would be conferred on Ministers under Section 31 (see below).
Question 2: How will the proposed Measure change what organisations do currently and what impact will any such changes have in terms of service improvement and community planning?
21.The WLGA does not expect that the proposals will result in a radical change of course in relation to either service improvement or community planning. We believe, however, that the proposals will open up significant new opportunities for authorities to extend and build on the progress that they have made in both respects over recent years. We anticipate that this will have a particularly valuable impact in terms of the way authorities work in collaboration and partnership, both with other organisations and with communities themselves, to deliver positive and sustainable outcomes for local communities. We expect that the Measure will lead to a significant enhancement of the extent to and ways in which authorities connect their areas’ community strategies to their organisational business plans and plans for improving service delivery. This will simultaneously enhance the extent to which service delivery and other aspects of local authorities’ performance are aligned with agreed ‘outcome’-level aspirations for enhancing and protecting community well-being, and ensure more effective action planning, performance management and risk management in support of the delivery of those high level strategic aspirations.
Question 3: Are the sections of the proposed Measure appropriate in terms of reforming the statutory basis for service improvement by local authorities and reforming community planning and strategies? If not, how does the proposed Measure need to change?
22.Broadly speaking, the WLGA regards the provisions of the proposed Measure as appropriate. However, there are a number of ways in which they might be amended and strengthened. These are identified below, with reference to the specific sections involved.
Section 2: General duty in relation to improvement.
23.Section 2 Paragraph 2 states that:
…‘an authority must have regard in particular to the need to improve the exercise of its functions in terms of—
(a) strategic effectiveness;
(b) service quality;
(c) service availability;
(d) fairness;
(e) sustainability;
(f) efficiency; and
(g) innovation.
These ‘areas for improvement’ are further included in s3(3) and s8(5), and defined in greater detail in s4(2),
24.Whilst the WLGA understands the principles behind the ‘areas for improvement’, it is important to test tthem against a contracting public finance settlement.
25.This test is particularly applicable to s2 2(b) and (c) above, which states that improvement should be evidenced in terms of ‘service quality’ and ‘service availability’. Despite the best political and professional will in the world and the most innovative approaches to service planning, financial limitations may mean it may not be possible to improve service quality or availability let alone achieve ‘continuous’ improvement. On the contrary, authorities may have to take the difficult deliberate decision to reduce quality or availability of services in order to either maintain that service or to reinvest resources into another, higher priority service area. The WLGA therefore expresses strong reservation around the inclusion of such improvement areas without relevant reference and caveat regarding levels of financial investment.
26.In terms of strengthening the linkages across Part 1 of the Measure (improvement) and Part 2 (community planning), the WLGA suggests that these ‘areas of improvement’ should be extended by the addition of a further improvement area relating to the community leadership and community planning duties (specifically those in sections 37 to 44).
27.This would significantly strengthen the links that the Measure is seeking to establish between ‘improvement’ and community planning.
28.The current S4 (2)(a) defines ‘strategic effectiveness’ in terms of the achievement of strategic objectives. While this is quite proper, and obviously important, it is a limited definition. It does not explicitly recognise that it may well be necessary and important for authorities to make improvements in the ways in which those strategic objectives are established in the first place i.e., in particular, through their community planning processes and arrangements for community involvement.
29.The inclusion of such an additional paragraph would recognise and support the legitimacy and importance of authorities seeking to improve the ways in which they exercise their community planning and hence community leadership functions.
30.Sections 4(2)(d)(ii), 4(2)(e) and 4(2)(f) state that ‘A Welsh improvement authority improves the exercise of its functions in terms of’:
…(d) ii social well-being is improved as a result of the provision of services;
(e) sustainability, if services are provided in a way which contributes towards the achievement of sustainable development in the authority’s area;
(f) efficiency, if there is an improvement in the efficiency with which resources are used in the provision of services…’
31.The WLGA argues that these should be amended to bring them in line with 4(2)(g) by referring to the ‘exercise of functions’ as well as the ‘delivery of services’.
32.In relation to ‘innovation’, 2(2)(g) refers to “the way in which functions are exercised or services are provided”. Sections 2(2)(d)(ii), 2(2)(e) and 2(2)(f) omit such a reference to the ‘exercise of functions’. This appears to discount the significant impacts that the ways in which authorities exercise their broader functions (i.e. in addition to service delivery) may have on social well-being, sustainable development and efficiency. Community leadership and community planning functions are particularly central in this, but other non-service delivery functions such as procurement and human resource management also have significant roles to play in securing improved outcomes on these fronts.
33.Amending the proposed Measure in this way would strengthen its contribution to the Assembly Government’s duties and commitments in relation to sustainable development and recognise and support the concept of ‘social efficiency’ (in tandem with ‘technical efficiency’ - as advocated by the Beecham Review3 ).
Sections 9 to 12
34.The WLGA is broadly supportive of the provisions in the proposed Measure relating to powers and duties of collaboration. However, attention is drawn to the comments below in relation to barriers and financial implications.
Sections 13-15
35.The WLGA and local authorities fully recognise the importance of robust, comprehensive and accessible performance information. Performance information is important for driving improvement through organisational management arrangements; for providing accountability and assurance around the improvement agenda both internally and externally; and engaging with communities and supporting their direct involvement in scoping and shaping improvement by ‘giving account’ through a range of media.
36.The WLGA sees the provisions in sections 13 to 15 of the proposed Measure as providing a framework that is broadly supportive of these requirements and aspirations. However, we do have concerns about some aspects, as detailed below.
37.Section 14 ‘Use of performance information’ imposes a duty on local authorities to compare performance information with other authorities:
‘ (1) A Welsh improvement authority must use the information it collects under section 13 to compare its performance in exercising the functions to which the information relates with –
(a) its performance in exercising those or similar functions during previous financial years; and
(b) so far as is reasonably practicable, the performance of other Welsh improvement authorities and other public authorities in exercising those or similar functions during the financial year to which the information relates and during previous financial years.’
38.It is questionable whether it is necessary to impose a duty to perform an activity that authorities already undertake as a matter of course in business and performance analysis. However, whilst recognising the importance of ‘comparison’ in interpreting and usefully applying an authority’s performance information, the WLGA is mindful that as currently framed, the Measure is too narrow. Superficial comparison can be misleading as well helpful and are only one element within the wide range of contextual information necessary to properly make sense of core performance data. In this sense, the provisions of s14(1)(a) and (b) above appear unduly limited and may place undue significance on comparison at the expense of other forms of contextualisation.
39.Given this is common business practice and potential narrow statutory interpretation and application, the WLGA recommends removing the proposed duty as it will not lead to demonstrable change to current practice.
40.Section 15 ‘Improvement planning and publication of improvement information’, outlines in paragraph (2) proposals for a duty on authorities to:
‘make arrangements for the publication of…
(c) details of the ways in which the authority has during a financial year exercised its powers of collaboration for the purpose of discharging or facilitating the discharge of its duties under sections 2(1), 3(2) and 8(7) during that year;’
41.Authorities are engaged in a range of collaborative mechanisms at different operational and strategic levels and whilst the Assembly Government might seek to offer greater clarity in subsequent statutory guidance, the WLGA is concerned that the requirement to publish such ‘details’ of collaboration is unduly onerous or, at least, is open to interpretation by the Auditor General for Wales that might make it so. We question the level of detail and the degree of collaboration that is necessary to meet the accountability requirements involved.
42.It is also unclear what interest or value such a list of collaborative activities would be to either members of an authority or the public. The WLGA therefore recommends removal of this proposal, however, should the Assembly Government provide a convincing argument for retention of this duty, we would recommend that the word ‘detail’ in s15 (2)(c) be replaced with a term such as ‘overview’.
43.With regard to s15(6): the WLGA suggests that, given the detail with which the duties established by sections 13 to 15 is set out, the reference (in parenthesis) to an “improvement plan” is unnecessary and should be deleted. A number of authorities argue that a separate improvement plan is increasingly unnecessary as improvement priorities should be mainstreamed and embedded within corporate and service plans.
Sections 17 to 20
44.Section 18 (1) on ‘Improvement assessments’ determines that in ‘...each financial year, the Auditor General for Wales must carry out an assessment for the purpose of determining whether a Welsh improvement authority is likely during that year to comply with the requirements of this Part’.
45.The WLGA questions whether the assessment is appropriate or necessary for all authorities on an annual basis.
46.Accordingly, the WLGA suggests that s18(1) be amended so as to allow that, following an initial assessment, the Auditor General is accorded scope to defer further reassessment of this matter for up to three years in circumstances where the assessment identifies that an authority’s arrangements are sufficiently robust and well-established to warrant confidence that reassessment within a one year cycle is not necessary. Annual improvement reports (s25(1)) in years 2 and/or 3 could then report on the basis of ‘no contrary indications’.
Section 24
47.The WLGA welcomes s24 relating to the ‘Co-ordination of audit etc’ which seeks to improve the level of audit and inspection coordination at the local level.
Sections 29-33
48.As noted above, the WLGA welcomes, in particular, the powers of “support for … improvement authorities” proposed for Welsh Ministers in s29 together with the further powers proposed in s32 to modify enactments and confer new powers. We would however question the breadth of the scope for Ministers to ‘do anything’ to assist an authority to improve and we note that this power may be clarified in subsequent statutory guidance.
49.However, the WLGA continues to be unconvinced of the principle, merits or deliverability in practice of the power to direct collaboration, set out in s30 (2)(c) and s31:
“(2) Where this section applies in relation to a Welsh improvement authority, the Welsh Ministers may direct it to do all or any of the following…
(c) enter into specified collaboration arrangements with another Welsh improvement authority…”
“31 Powers of direction: collaboration arrangements
(1) This section applies to a Welsh improvement authority to which section 30 does not apply.
(2) Having first consulted the authority, the Welsh Ministers may direct the authority to enter into specified collaboration arrangements with a Welsh improvement authority to which section 30 does apply.
(3) A direction given under this section shall be enforceable by mandatory order on the application of the Welsh Ministers.“
50.Whilst the Explanatory Memorandum is much clearer than the policy consultation ‘Delivering a Shared Responsibility’ in stating the improvement intentions behind the proposed power, it remains difficult to envisage how, under any circumstances, that power might be effectively deployed independently of other powers of intervention available to Ministers within the terms of the measure; and if those other powers were being appropriately and effectively deployed the further power to direct collaboration would be very unlikely to be necessary. Local government in Wales already works collaboratively around the improvement agenda, and has a track record of sharing capacity and peer expertise to authorities in need of improvement support.
51.The reasonable presumption is that the ‘power to direct’ could only be appropriately deployed in circumstances where the collaborative arrangement in question was unequivocally the best option available to the authority. It is difficult to conceive circumstances in which such a fundamental and acute failure of corporate governance might occur independently of more widespread and chronic shortcomings such as would justifiably require the Assembly Government to invoke the other, more general powers of intervention available to it within the terms of section 30.
52.The WLGA notes the intention to consult with the authority that would be approached to provide ‘collaborative support’ to another authority. However as noted above, there is already a culture in Wales for mutual support to be provided within the local government family and if an authority was able to provide support it would have already done so voluntarily. If such an authority had already decided that it was unable to provide support (perhaps due to capacity reasons or that such support may be to the detriment of its own services) it seems unlikely that the Assembly Government would wish to then direct this authority to provide support against its wishes. Such an intervention would hardly engender a constructive or conducive environment for mutual support. Accordingly, the WLGA suggests that section 30 (2)(c) and section 31 be deleted as it cannot conceive of a situation where it could be appropriately or successfully implemented.
53.Similarly, whilst a number of the other powers of support and intervention as outlined in sections 29 and 30 currently broadly exist, the WLGA recommends that reference is made to ‘consultation with an authority (or its representative organisation)’ prior to any intervention or support measure from any Welsh Minister. Such prior consultation is in line with the current Intervention Protocol and also is reflected in section 31’s proposed power to direct collaboration. Such a principle not only recognises an authority’s legitimate and sovereign mandate but also allows the Welsh Minister to make an informed decision regarding the use of such powers.
Part 2 - Sections 37 to 47
54. With regards to s37 ‘Community Planning’
(1) A local authority must—
(a) initiate; and
(b) having done so, maintain, facilitate and participate in, community planning for its area.’
The WLGA recommends the reassertion of the concept of the community leadership concept introduced in the original Local Government Act 2000. This reassertion would not only clarify the Assembly Government’s ongoing commitment to this key statutory role for local government but clarifies why local authorities are tasked with coordinating and leading the community planning process.
55.With regard to sections 39 to 44: the WLGA welcomes the sophisticated thinking that is evident in section 39. However, we are concerned that this may be compromised by some aspects of the duty to review set out in s40, in particular the four yearly review period as specified in s40(1)(a) and (b).
56.We are concerned that the concept of ‘review as a periodic event’ that is implied in s40 fails to recognise that community strategies can legitimately and arguably should continually evolve in response to unpredictable, and often fast-moving developments (emerging threats and opportunities) in the strategic environment (the current, global ‘credit crunch’ is just one example). It is reasonable to expect that, over the next few years, Welsh authorities will identify, develop and adopt increasingly sophisticated tools for continually updating and communicating their areas’ community strategies (for example, a number of authorities are currently using the ‘OpenStrategy’ tool for just such a purpose). While the ‘duty to review’ as set out in the proposed s40 in no way prevents such innovation, neither does it properly recognise the need for it or help to drive it.
57.This concern is compounded by a careful reading of sections 39, 41 and 44 in conjunction with one another and in the context of s40.
58.Section 39 in effect introduces a ‘satisfactory (as deemed by the authority) degree of consensus’ amongst community planning partners as a threshold that has to be crossed before a ‘community strategy’ can be identified, labelled and published as such. In relation to ‘community strategy reviews’ s42(2) and s42(4) specify a set of aspects of the strategy around which such consensus must be achieved. S44, relating to community involvement, then introduces a duty to take into account the views of a wide range of stakeholders.
59.This is a complex picture in which continuous activity is needed to maintain or refocus the active consensus (as opposed to simple ‘consent’ at a single point in time) that s39 sets as a threshold. In this context, ‘community strategy review’ has to be considered as a continuous and engaged process. The WLGA suggests that the wording of s40 sits uncomfortably with this requirement.
60.Accordingly, the WLGA suggests that the wording of sections 40 and 41 be reviewed to recognise and allow supplementary statutory guidance to recognise that ‘review of community strategies’ should be regarded as a continuous process, rather than an episodic event.
61.The WLGA welcomes the s37 3(a) and (b) regarding the duty on public bodies to ‘participate in community planning’, which has been long called for by the WLGA.
62.The WLGA also welcomes the inclusion of s46 which clarifies the ‘Community Planning role of Welsh Ministers’ more clearly than previous legislation. S46 states that ‘The Welsh Ministers must, in exercising any function which might affect community planning aim, so far as it reasonably practicable to do so, to promote and encourage community planning.‘ Given community strategies reflect the agreed priorities of all local partners, following extensive consultation with the public, the WLGA would however wish to see this section strengthened with the inclusion of a clearer role for Welsh Ministers in that they ‘should have regard to priorities outlined in community strategies in the exercise of their functions.’
Questions 4 & 5:
What are the potential barriers to implementing the provisions of the proposed Measure (if any) and does the proposed Measure take account of them?
What are the financial implications of the proposed Measure for organisations, if any?
63.The WLGA suggests that the constraints (we do not regard them as absolute ‘barriers’) bearing on the implementation of the provisions of the proposed measures relate, in general, to the ability of authorities to take full advantage of the additional powers that the Measure would confer on them, rather than their ability to fulfil the duties.
64.As noted above, the current and future financial settlements may impact on authorities’ ability to achieve ‘continuous improvement’ particularly in service quality and availability. Similarly, whilst the proposed Measure outlines a flexible approach to the improvement regime in Wales, which is open to local interpretation and innovation to fit local needs, such local flexibility and innovation may be compromised by other Assembly Government initiatives which may be more prescriptive, or by the current national drive towards standardisation in performance across Wales or through the inflexible application of regulation.
65.In this context, the claim in paragraph 6.2 of the explanatory memorandum that the provisions “do not give rise to any administrative, compliance or other costs” should be challenged. Many of the activities in the Measure require finance and administrative capacity to deliver them properly, such as collating and publishing performance information, consulting with and engaging the public in community planning, coordinating and servicing the community planning process and undertaking compliance activity. Whilst some of improvement activity may lead to efficiency savings in the longer term, some activities (such as collaborative ventures) may require significant additional pump-priming investment.
66.Beyond this, we would refer to the cultural and attitudinal constraints noted in the introductory comments above, particularly the need to focus on more ‘community-focussed’ rather than a bureaucratic or ‘organisation-centric’ view of strategic risk.
67.There is a continuing risk that prescribing too much detail and too many process requirements into statutory duties may reinforce an organisation-centric and risk-averse culture.
68.Overall, whilst bearing in mind the caveats and suggested amendments expressed above, the WLGA considers that the provisions of the proposed Measure successfully avoid such pitfalls and offer important opportunities for further progress towards a truly community-focussed approach.
69.We are mindful that the drafting of the subsequent statutory guidance will be critical in addressing the kind of cultural and attitudinal constraints identified above and realising the full potential for progress that the proposed Measure offers. The WLGA looks forward to contributing to that process.
1. A range of such threats and opportunities bearing on the long-term well-being of Welsh communities are well-recognised, and are the focus of policy and strategy at local and national levels. The list includes – in no particular order - such issues as climate change, issues of social justice, ‘health-related’ issues such as obesity and alcohol abuse, child poverty, the availability of affordable housing, educational attainment, peak oil, community cohesion, and many more. A community-centred view of strategic risk management calls for an evidence-based approach to analysing and assessing these issues to determine priorities and seek solutions in a coordinated way across both national and local levels.
2. The above list in footnote 1 closely mirrors the emerging issues’ and priorities that LSBs have been focussing on and are seeking to place at the heart of their Local Delivery Agreements.
3. Sir Jeremy Beecham’s ‘Beyond Boundaries’ Report (p31, para 4.1) defines ‘improving efficiency and thereby delivering better outcomes…in respect of both:
- doing the right things - making the right policy choices and investment decisions, getting the best balance of services to achieve policy outcomes (social efficiency);
- doing things right - getting the best value for money and achieving the desired impact from specific interventions (technical efficiency).’
