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Local Government Transparency Code Re – Issued

In February 2015 the Local Government Transparency Code was re issued to require local authorities to publish information about their social housing stock.

The Code was made under Section 3 of the Local Government, Planning and Land Act 1980 which gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities in England (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) relating to the discharge of their functions. In October last year, Eric Pickles (the then Communities and Local Government Secretary) used this power to issue what was then an updated version of the Code.

As with the previous version, the re issued code requires quarterly publication of the same categories information namely:

Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
Government Procurement Card transactions
Procurement information

Part 2.2 of the code sets out nine sets of data, which must be published annually. This includes local authority land, grants to voluntary bodies, trade union facility time, parking information and senior salaries. Here a new category of data, about social housing assets, has been added.

Local authorities owning housing must now publish details (set out in paragraph 38 to 44) of the value of social housing stock that is held in their Housing Revenue Account. This information must be published on the first occasion not later than 1 September 2015 (based on the most up to date valuation data available at the time of publishing the information), then in April 2016 and every April thereafter.

The Government believes that local people are interested in how their authority manages the social housing assets they hold. The move will give people the information they need to ask questions of how their council is managing stock to ensure this is put to best use, including considering whether higher value, vacant properties could be used to fund the building of new homes and reduce waiting times.

We could see more developments in this area. As I said in my recent blog post about the future of FOI, the Conservatives are keener on transparency through such codes than through extending FOI. Their election manifesto says:

“Transparency has also been at the heart of our approach to government. Over the last five years, we have been open about government spending, provided access to taxpayer-funded research, pursued open data and helped establish the Open Government Partnership. We will continue to be the most transparent government in the world.”

Smaller councils, including parish councils have to comply with the Transparency Code for Smaller Authorities, which was published in December last year.

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New Transparency Code for Smaller Authorities

In October 2014 the Department for Communities and Local Government (DCLG), published an updated version of the Local Government Transparency Code . This applies in England only and replaces the previous version. The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). Read more about the code here.

But what of smaller public authorities and parish councils? On 10^th March 2014 the Government launched a consultation on a draft transparency code for such organisations, which will act as a substitute for routine external audit.

On 17^th December 2014 the DCLG finally published the Transparency Code for Smaller Authorities. This code applies to the following types of authorities with an annual turnover not exceeding £25,000:

parish councils
internal drainage boards
charter trustees
port health authorities

This code is issued to meet “the government’s desire to place more power into citizens’ hands to increase democratic accountability.” However it is published initially as recommended practice, although the Secretary of State told Parliament on 17th December that he intends to make the code mandatory by the start of the 2015 financial year.

The Local Audit and Accountability Act 2014 sets out a new audit framework for public authorities which are currently covered by the Audit Commission regime. Under this new framework smaller authorities will be exempt from routine external audit. In place of routine audit, they will be subject to the new transparency requirements laid out in this code. This will enable local electors and ratepayers to access relevant information about the authorities’ accounts and governance.

Part 2 of the code sets out the information to be published:

all items of expenditure above £100 (see paragraphs 13 – 15);
end of year accounts (see paragraphs 16 and 17),
annual governance statement (see paragraphs 18and 19),
internal audit report (see paragraphs 20 – 22),
list of councillor or member responsibilities (see paragraph 23)
the details of public land and building assets (see paragraphs 24 – 27)
Minutes, agendas and meeting papers of formal meetings (see paragraphs 29 and 30)

The code states that the information specified must be published on a website which is publicly accessible and free of charge. This could be on the authority’s own website or that of the billing authority in its area (district or London borough or unitary council).

Ibrahim Hasan will be discussing both transparency codes in his forthcoming live and interactive one-hour web seminar.

Yet Another Local Government Transparency Code – A Gift for Armchair Auditors?

The Coalition Government likes “armchair auditors”.

Within weeks of coming to power in 2010, it released all items of local authority expenditure over £500. The Secretary of State for Communities and Local Government, Eric Pickles, said at the time that the move would “unleash an army of armchair auditors and quite rightly make those charged with doling out the pennies stop and think twice about whether they are getting value for money”.

Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. Back in May, Eric Pickles used this power to issue (what was then) a new Local Government Transparency Code. (See my earlier blog post.)

Now, an updated version of the Code , dated October 2014, has been issued. It applies in England only and replaces the previous version. The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations.”

Ministers will imminently make and lay regulations (The Local Government (Transparency Requirements) (England) Regulations 2014)) to make it a legal requirement for local authorities to publish the data specified in Part 2 of the code. Subject to Parliamentary processes, Part 2 should become mandatory by 7 November 2014.

Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:

Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.

Government Procurement Card transactions

Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.

Part 2.2 of the code sets out nine sets of data which must be published annually. This includes local authority land, grants to voluntary bodies , trade union facility time, parking information and senior salaries. In relation to trade union facility time, authorities should publish the amount spent on providing support and facilities to trade unions within their workforces, and specify which unions. In relation to parking charges, categories include the number of off-street parking places and the revenue raised from them; the number of on-street parking places and the revenue they raise; as well as the revenue from parking fines and the number of free parking spaces available.

The main difference between the May and October codes is that the latter has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, uses the parking revenue it collects and tackles fraud.

On salaries the code requires publication of more information than is currently required under the Accounts and Audit (England) Regulations 2011. Local authorities must now place a link on their website to these published data or place the data itself on its website, together with a list of responsibilities (for example, the services and functions they are responsible for, budget held and number of staff) and details of bonuses and ‘benefits in kind’, for all employees whose salary exceeds £50,000. The key differences between the requirements under this new code and the Regulations referred to above is the addition of a list of responsibilities, the inclusion of bonus details for all senior employees whose salary exceeds £50,000 and publication of the data on the authority’s website. What effect will this have on FOI requests for salary information? Certainly senior figures will find it hard to claim that they have an expectation of privacy when it comes to FOI requests for similar information. (More on salaries here.)

Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category in Part 2, e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.

Existing restrictions on disclosing information still apply though. Paragraph 14 of the code states:

“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”

However where a qualified exemption under FOI applies, the appearance of the requested information in one of the categories set out in the code will have a big impact on the public interest in support of disclosure.

How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence, published by the National Archives, should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.

The DCLG has also published an accompanying FAQ Guide which gives further guidance on how to practically apply the new code.

Despite Part 2 of the code being legally enforceable soon (see above), does the code have any teeth? The code does not have an enforcer like the Information Commissioner under FOI. Indeed the DCLG has pointed out in the FAQs that it is not the Commissioner’s role to enforce the code. It does though suggest that complainants can issue a judicial review claim in the High Court (unlikely with public funding of such cases being virtually ceased) or complain to the Local Government Ombudsmen. It also suggests they make an FOI request for the same information!

It will also be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1^st September 2013 via the Protection of Freedoms Act.

On 10 March 2014 the Government launched the consultation on a draft transparency code for parish councils with a turnover not exceeding £25,000, which will act as a substitute from routine external audit. The Government published its response to the consultation on 6^th August and intends to lay regulations to make the code mandatory later on this year. (More for those advising Parish Councils here.)

The Government believes that transparency about how local authorities spend money and deliver services, and how decisions are made within authorities, gives local people the information they need to hold their local authority to account and participate in local democratic processes. It claims that the availability of data can also help secure more efficient and effective local services and open new markets for local business, the voluntary and community sectors, and social enterprises to run services or manage public assets.

Will armchair auditors make use of this new information? Time will tell but readers would be right to be sceptical.

The New Local Government Transparency Code

Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. The Secretary of State for Communities and Local Government has just issued a new Local Government Transparency Code . It applies in England only and replaces the previous version.

The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information whilst also recommending that they go beyond the minimum. It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations”. In that consultation, Eric Pickles, the Communities Secretary, wanted the power to enforce the Code through regulations. This would have given him the power to seek an order from the courts that an authority is in breach of its obligations, and/or an order that it must comply with its duties. It seems that this idea has been quietly dropped but the code does say:

“In principle all data held and managed by local authorities should be made available to local people unless there are specific sensitivities (e.g. protecting vulnerable people or commercial and operational considerations) to doing so.”

Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:

Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
Government Procurement Card transactions
Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.

Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.

Existing restrictions on disclosing information still apply though. Paragraph 14 of the Code states:

“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”

How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence published by the National Archives should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.

It will be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1^st September last year via the Protection of Freedoms Act.

How far will local authorities go in publishing information under the code? Will they just do the bare minimum? (Answers on a postcard or in the comment field below.)

Give your career a boost in 2014 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions in 2014 by attending our FOI Update workshops.