The Leaseholder Cladding Scandal and When Ministers Direct

12/02/202112/02/2021 / inlogov / Leave a comment

Chris Game

You probably caught at least something of the Commons ‘cladding’ debate last Monday (1st Feb), and almost certainly some of this week’s fallout. Called by Labour on one of its designated ‘Opposition Days’, the debate sought “urgent” Government action to end the scandal of lease-holding flat owners, living in unsafe, unsaleable, uninsurable properties, being forced to pay unaffordable sums of money for the removal of flammable cladding.

And, if 43+ months after the Grenfell Tower tragedy qualifies as “urgent”, we finally got it this Wednesday, in the form of a statement from Robert Jenrick, Secretary of State for the whole thing – Housing, Communities and Local Government.

Important as that statement obviously is, neither its content nor even its questionable squareability with the PM’s most recent pledge that “no leaseholder should have to pay for the unaffordable costs of fixing safety defects that are no fault of their own” are the central concerns of this blog, which by comparison – Reader Alert! – are arcane verging on nerdy. For the record, however, Jenrick’s three key proposals are for:

a further £3.5bn of government grant to pay for the removal and replacement of dangerous cladding systems on buildings over 18 metres tall;
for buildings below 18 metres, a long-term “financing solution” of a government loan to the owner, repaid by leaseholders, with a payment cap of £50 per month;
a new levy for developers, to become applicable when planning permissions are submitted for high-rise developments.

Back, though, to last Monday. Labour’s motion, introduced by Shadow Housing Secretary, Thangam Debbonaire, called for the Government to establish a new, somewhat Starmer-sounding, cladding taskforce that would make buildings with dangerous materials safe and protect leaseholders from the costs. Initial respondent for the Government was, remarkably, the Minister of State for Europe and the Americas, Chris Pincher, not due formally to assume office as Minister of State for Housing for another 12 days. The so-called – and here so appropriately – wind-up was done by Eddie Hughes, Junior Minister for Rough Sleeping and Housing.

As for the not generally publicity-shy Jenrick, he apparently “stayed away entirely”. Which inevitably reinforced the impression, conveyed by his being openly accused of “incompetence” in this matter by his own backbench ‘colleague’, that neither he nor the Government as a whole were any more bothered than they had appeared previously about even being seen to regard this scandal as a major priority.

For the record, Monday’s motion was passed by 263 votes to nil. The Ministers seemed unable to convince anyone that the Government was addressing the issues with anything like the requisite urgency. But Conservative backbenchers, increasing numbers of whom had already been seeking, without noticeable Labour support, to amend the Fire Safety Bill to avoid remediation costs being passed on to leaseholders, chose to abstain, rather than give HM Official Opposition unearned credit.

At which point I must temporarily side-line cladding, while explaining how, almost by chance, I happened upon one of the latest updates in the Institute for Government (IfG)’s occasional series of ‘Explainers’ – on Ministerial Directions (MDs) – a topic about which previously, I confess, I’d bothered myself relatively little.

Poor show perhaps, for someone actually endeavouring to teach students about British politics. My rationalisation would have been that, while broadly aware of what MDs were/are and their obvious importance, I sensed that their usage wasn’t that frequent, and that anyway, until “the rules” were changed and GOV.UK was launched in 2011/12, most such directions would indefinitely have remained state secrets.

Unwittingly, I was actually right about the numbers – as shown in one of the IfG’s several excellent graphics: an average of under two a year while I was teaching, compared to 31 in the past three years and 19 in 2020 alone. The explosion, and indeed MDs generally, seemed worth further inquiries.

First, then, what exactly are ‘Ministerial Directions’? In this case, just what it says on the tin: formal directions from Ministers instructing their department to proceed with a spending proposal – and in so doing overriding the principled objection of the most senior civil servant: the Permanent Secretary (PS), who is also the ‘Accounting Officer’, accountable to Parliament for how the department spends its money.

And it’s not just a clash of wills, or opinions. There are specified criteria any spending proposal must meet: that it’s within both the department’s legal powers and agreed spending budget, meets “high standards of conduct”, constitutes value for money, and stands a feasible prospect of being implemented as specified within the intended timetable. If a PS has doubts about a proposal meeting any of these criteria, they must seek explicit direction from the Minister, who thereupon writes a ‘directing’ letter and takes accountability for the decision. Interestingly, that’s often how it seems to work: less a Minister’s wanting to spend overriding the horrified protests of a cautious civil servant than the civil servant seeing or at least agreeing the need to spend but constitutionally requiring the Minister’s say-so.

British politics being conducted in the ‘civilised’/secretive way it generally is, even the traditionally rare occasions on which such clashes come to a head are rarely much publicised, but there are exceptions. Remember Joanna Lumley’s ‘Garden Bridge’ over the Thames – proposed as a largely privately-funded project, but taken up with characteristic enthusiasm by the then Mayor of London and given significant pre-construction funding by the Department for Transport? At which point the Transport Secretary, Patrick McLoughlin, came back wanting more – arguing to the ‘Accounting Officer’ (the PS) and in his Ministerial Statement that there were more than mere transport benefits to be considered and that the Department’s pre-construction commitment should be increased by up to £15 million. It duly was, and of course the Garden Bridge is today the “iconic tourist attraction right in the heart of our capital city” that the Mayor and Minister predicted. Sorry, is it not?

A more specifically local governmenty Ministerial Direction was that the MHCLG should not recover from councils £36 million that, through an error in civil servants’ methodology, they had been overpaid for participating in 100% business rate retention pilots (2017/18). Nice one, Sajid Javid!

What had particularly caught my interest, though, was that noticeable rise in MDs over the past 2-3 years and the positive explosion under the Johnson Premiership, certainly since the arrival of Covid. In fact, the IfG’s graph reminded me almost immediately of the well-known view of one of the ugliest buildings in London – the Vauxhall Tower overlooking St George Wharf – and, as it happens, just two bridges down-river from the IfG.

There have already been 14 Covid-related Ministerial Directions – worth possibly a blog in their own right – but I’d gone in looking for cladding business, and there it was, in May 2019 – two months pre-Johnson. James Brokenshire, Jenrick’s predecessor as Housing and Communities Secretary, had made clear both his and PM Theresa May’s view that leaseholders should not have to pay – even assisted by the kind of loan scheme announced this week.

It’s worth reading the full exchange of letters between Secretary of State Brokenshire and the Permanent Secretary, but the following extract from Brokenshire’s will convey at least the flavour:

“I understand that, in making these choices, the taxpayer will pick up the vast majority of remedial costs. However, I have considered that against the safety implications for residents and the need for pace. I consider those two factors to be more important.”

The only thing, however, seemingly throughout this whole wretched business, to have happened at any pace was Brokenshire’s own departure, like that of Theresa May herself, to the backbenches. A pity – somehow I don’t feel he would have taken last Monday afternoon off, or that nearly 20 months later there would still have been no Government policy.

Chris Game is an INLOGOV Associate, and Visiting Professor at Kwansei Gakuin University, Osaka, Japan. He is joint-author (with Professor David Wilson) of the successive editions of Local Government in the United Kingdom, and a regular columnist for The Birmingham Post.

Council leaders: the importance of being more than earnest

26/07/201726/07/2017 / inlogov / 2 Comments

Oscar Wilde’s imperious Lady Bracknell, being both fictional and approaching her 20th decade, was rather ruled out from chairing the Grenfell Tower fire inquiry, despite her familiarity with certainly the posher parts of the Royal Borough of Kensington and Chelsea. We can surmise, though, her views on being earnest as a quality in political leaders: important, yes; sufficient, no.

We can also imagine her pronouncement to Jack Worthing, discovered as a parentless infant in a handbag in a London railway station cloakroom. For K & C council to lose one leader, whose chief merits seemed to be earnestness plus length of council service, may be regarded as a misfortune; to replace him with another, with apparently even fewer compelling qualifications, looks like carelessness.

The council’s early failures even to recognise the scale and nature of the crisis it faced have been well aired, including in these columns, culminating in the peremptory, and probably costly, dismissal of the council’s Chief Executive by Communities Secretary, Sajid Javid. Almost inevitably, though, further heads seemed bound to – and continue to – roll, first being that of the Leader, Nicholas Paget-Brown. 30-plus years as a K & C councillor, council leader for four, former cabinet member for leisure services, he lacked, unfortunately, first-hand familiarity with tower block building regulations, polyethylene-filled aluminium panel cladding, and all the other techie stuff on which the nation’s chat show presenters are now such aggressive authorities.

But Paget-Brown was visibly there, soon after the fire, being earnest and contrite. Unlike his deputy, who had (and, according to the council’s evidently traumatised website, still had, three weeks after his resignation) “specific responsibility for promoting better housing for residents”. Despite having overseen the Grenfell Tower refurbishment and prettification, at the crucial time he appeared to keep even his earnestness to himself.

In accordance with our rather flexible notions of electoral accountability, the resignation of both senior politicians was deemed necessary, if not in any practical way beneficial. Hence the election as new council leader of Elizabeth Campbell – from one of the more affluent areas in the south of the borough, a cabinet member at the time of the fire, and who couldn’t remember, when first asked, exactly whether or not she’d ever entered a residential tower block.

Like her predecessor, Campbell was hugely apologetic and earnest. But her media performances did seem to highlight the basic question of what we can reasonably expect of our councils’ elected representatives – as opposed to their paid, trained, specialist and supposedly expert officers – in our ever-larger scale, overstretched, underfunded, centrally dominated, under-respected system of so-called local government.

Kensington & Chelsea is, excepting the City of London, the smallest London borough by population. Yet its councillors, like Campbell and Paget-Brown – and obviously even more so those of our over 120 larger urban authorities – have somehow to attempt personally to represent and respond to the needs of between, on average, four times as many residents (Belgium, Spain) and over 20 times (France) as their counterparts in other major Western European countries.

Faced with a technical and human disaster on the scale of Grenfell Tower, could any elected local political leader(s) have the combination of personal attributes, training and experience to be able to react meaningfully, and even conceivably make a substantive contribution to its prevention?

It’s largely a rhetorical question – but not entirely. For, almost by chance – well, in writing a paper for the recent IASIA-MENAPAR Conference in Ramallah – I came across one who might have fitted K & C’s recent personal and political requirements remarkably closely. I refer to the recently elected mayor of the Palestinian West Bank town of Azzun – similar in area to K & C, but with a much smaller population, and a necessarily circuitous two-hour road journey north west of Jerusalem.

The new mayor is considerably younger than K & C’s leaders, but compensates with a CV they – and possibly even some officers – would have given much for in recent days: an electrical engineering degree, work as a contracting engineer in Jericho and as a supervisory engineer for CHF (Cooperative Housing Foundation) International, interspersed with volunteer social work back in Azzun. Oh yes, and I nearly forgot, Mayor Yusra Mohammed Badwan is a woman: a 25-year old, hijab-wearing Muslim woman, whose Arabic would also have come in handy, given its reputation as Kensington’s second language.

Badwan is, of course, highly unusual, but not unique. Palestine’s conservative and patriarchal culture makes for an even more male-dominated and sexist local government environment than that in England and Wales pilloried in this month’s Fawcett Society’s Local Government Commission report. Yet, against the odds, it has produced some exceptional women mayors – and certainly more than resulted from our own metro-mayoral elections (which formed half the focus of my conference paper: ‘If Palestine can elect women mayors, why do English city regions find it so hard?’).

Palestinian%20mayors.jpg

They include Janet Mikhail, a Roman Catholic, who in 2005 assembled a remarkable ‘Ramallah for All’ Christian-Islamist coalition to defeat Fatah, the dominant West Bank party, in the Palestine National Authority’s administrative capital. And, more recently, Vera Baboun, a former university professor, who was the (necessarily Christian) Mayor of Bethlehem until her also multi-faith independent alliance was defeated in this May’s elections, incidentally depriving her of the thrill of hosting President Donald Trump on his first overseas jaunt.

But back to Badwan, clearly undaunted by her new role: “mayors have many tasks – developing the town by organising housing projects, establishing public facilities such as parks and libraries, paving roads, improving services such as sanitation and water, and making sure residential neighbourhoods stay clean.”

Her biggest and permanent challenge, though, is “the Israeli occupation”. Like so much of the West Bank which under the 1993 Oslo Accords was to be “gradually transferred to Palestinian jurisdiction”, Azzun has been under full Israeli military and civil control – or, as Badwan puts it, “Israeli siege” – throughout her life.

It’s a different sort of torment from Grenfell Tower, but, as was depressingly illustrated in the recent Commons debate, social media users can be careless of such subtle details. So, if your Arabic is up to it, check out Azzun municipality’s Facebook page, and you may still find: “Are there no men left in Azzun? Why did you accept a woman? The great town of Azzun has become a joke.” And from another charmer: “A people that has allowed a woman to rule will never succeed”.

Chris Game is a Visiting Lecturer at INLOGOV interested in the politics of local government; local elections, electoral reform and other electoral behaviour; party politics; political leadership and management; member-officer relations; central-local relations; use of consumer and opinion research in local government; the modernisation agenda and the implementation of executive local government.

The Tale of Kensington’s Secret Cabinet

30/06/201730/06/2017 / inlogov

Philip Whiteman

Last week, I wrote about the potential scope for intervention measures by the Secretary of State against Royal Borough of Kensington and Chelsea (RBKC) following their authority’s inability to provide leadership after the Grenfell Fire Disaster. The adverse publicity surrounding the authority and its handling of the crisis should have provided a wake-up call in terms of leadership and how it manages its relations with wider public. So it was somewhat surprising that the Authority remains in hot water following an attempt to stop the public from attending a scheduled cabinet meeting, including a legal judgement overturning that ban and scorn from Downing Street.

As most monitoring officers and councillors will be aware, there are strict rules governing public attendance. So it is surprising that RKBC attempted to block public access.

Council meetings and committee meetings are formal events, not social occasions. They have a clear purpose – to make decisions – and are not just talking shops. Furthermore, they are public events; the meetings must be advertised and the press and public have a right to observe how the council operates. Exceptions are when sensitive issues are discussed (such as legal, contractual or staffing matters) and then the council can agree to exclude the press and public for just that item of business. They are not to be closed to the public at a council leader or monitoring officer’s whim.

The rules governing public access are defined under Section 100(A)(4) of the Local Government Act 1972, which states that the public (including the press) may be excluded from Council meetings if exempt information relating to one of the following paragraphs of Schedule 12A to the Act is likely to be disclosed. Section 12A sets out the following matters which shall be considered as private:

Para 1 “Information relates to a particular employee, former employee, applicant to become an employee, office holder, former office holder or applicant to become an office holder.”
Para 3 “Information relates to a particular occupier or former occupier of, or applicant for, the Council’s accommodation.”
Para 4 “Information relates to a particular applicant for, recipient or former recipient of a service”.
Para 5 “Information relates to a particular applicant for, recipient or former recipient of financial assistance”.
Para 7 “Information relates to the financial or business affairs of a particular person.”
Para 8 “Information relates to the amount of expenditure proposed to be incurred under a particular contract for the acquisition of property, or the supply of goods or services.” (see footnote 1 below)
Para 9 “Information relates to terms proposed or to be proposed in the course of negotiations for a contract for acquisition or disposal of property, or the supply of goods or services.” (see footnote 2 below)
Para 10 “Information relates to the identity of the Council as offering a particular tender for a contract for supply of goods or services.”
Para 11 “Information relates to current or contemplated consultations or negotiations in connection with a labour relations matter arising between the Council and employees or office holders of the Council.” (see footnote 3 below)
Para 12 “Information relates to instructions to, or opinion of, Counsel and advice received, information obtained or action to be taken in connection with legal proceedings by or against the Council, or the determination of a matter affecting the Council
Para 13 “Information would reveal a proposed notice, order or direction under an enactment.” (see footnote 4 below)
Para 14 “Information relates to action taken, or to be taken, in connection with the prevention, investigation or prosecution of a crime.”
Para 15 “Information would reveal identity of a protected informant.”

Under these rules, it is possible that the authority deemed paragraph 12 as grounds to restrict public access. Yet, it is an authority that is facing an internal crisis as well as having to handle the aftermath of Britain’s most serious fire this century. So it is possibly beggar’s belief that they attempted to exclude public access.

Not only are the public to be admitted to public council meetings unless exempted by Section 12A, but they are also subject to further restrictions on information they can withhold by means of The Local Authorities (Executive Arrangements)(Meetings and Access to Information)(England) Regulations 2012. The 2012 regulations created a presumption that all meetings of the executive, its committees and subcommittees are to be held in public (regulation 3) unless a narrowly defined legal exception applies. A meeting will only be held in private if confidential information would be disclosed, or a resolution has been passed to exclude the public because exempt information is likely is be disclosed, or a lawful power is used to exclude the public in order to maintain orderly conduct at the meeting (regulation 4). In the past councils could cite political advice as justification for closing a meeting to the public and press, or state that decisions being made were not ‘key decisions’. The new regulations create a presumption that all meetings of the executive, its committees and subcommittees are to be held in public. Clearly, in the instance of any decision related to Grenfell, it would have to be regarded as a ‘key decision’.

Philip Whiteman is a Lecturer at the Institute of Local Government Studies. He has research interests in the impact of central government and regulators on the role, service delivery and performance of local government and other local bodies.

Grenfell Tower: Not Local Government’s Finest Hour.

26/06/201726/06/2017 / inlogov / 1 Comment

Philip Whiteman

The Grenfell Tower disaster has not been local government’s finest hour in terms of their apparent response to the emergency. So, if the media reports on the Royal Borough of Kensington and Chelsea (RBKC) have been accurate, their behaviour clearly differs from the LGA’s statement that, “Emergency planning is a key issue for local people and the reputation of councils and fire and rescue authorities can depend on the effectiveness of planning and response.” But to compartmentalise this is a reputational issue alone would be wrong, as lack of emergency response may highlight wider performance problems. It is therefore not surprising that the chief executive of RBKC, Nicholas Holgate, resigned after being asked to do so by the communities secretary, Sajid Javid. It transpires that Javid required the leader of the council to seek Holgate’s resignation, according to various media reports.

The Local Government Act 1999 enables the Secretary of State to intervene in the conduct and operation of local authorities. Whilst government does not use the instrument lightly, there are plenty of examples from some authorities graded as poor under the extinct Comprehensive Performance Regime to the scandals surrounding Doncaster, Rotherham and Tower Hamlets. Javid clearly had a sanction at hand when dealing with the troubles at RBKC.

The resignation of the Chief Executive may be insufficient at addressing what are possibly wider performance and governance issues, as there are clearly significant weaknesses in the ability of the authority to discharge its duty in responding to emergencies and in providing competent civic leadership. Let’s take the first issue on emergencies. The Civil Contingencies Act 2004 places a duty on local authorities to stablish a clear set of roles and responsibilities for those involved in emergency preparation and response at the local level. RBKC would have been acutely aware of such requirements given its location within one of the world’s greatest capital cities and densely populated parts of Britain. Irrespective of the public inquiry, the government could ask two key questions:

Why was RBKC so seemingly slow at responding to an emergency situation?
Why was RBKC unable to perform an important fundamental duty towards its population in such as situation as Grenfell Tower?

Was the authority’s political leadership sufficiently competent to deal with resourcing emergency planning

There are questions regarding governance issues related to RBKC both in terms of its ability to respond to the immediate emergency from a political and managerial leadership perspective and the more historical aspects related to the purported complaints by Grenfell Tower residents on the high risk nature of the property.

As a London based authority, RBKC may not be alone in terms of its apparent lack of competency to discharge its statutory duties. So, we need to learn fairly quickly why RBKC fundamentally failed in order to address wider weaknesses throughout the rest of local government. So over and above the Javid’s intervention regarding Holgate, further examination is required to investigate the root cause of RBKC’s failure through Sections 10 and 11 of the Local Government Act empowering inspectors to investigate in detail the operations of RBKC, but without prejudice to any immediate police investigation.

Typically, an intervention usually results in the organisation being placed into a process of turnaround led by government appointed commissioners or consultants. Turnaround processes naturally differ from one authority to another. In the most extreme example, councillors may find their decision making powers withdrawn. At the other end of the spectrum, turnaround may focus upon business process re-engineering focussed on a particular issue. To situate where RKBC could fall within the spectrum would be mere speculation.

In terms of wider values, the aftermath of Grenfell Tower has not portrayed the ability of local government to respond and lead at times of crisis very well. The woefully inadequate responses by managerial and local political leadership are well publicised and sufficient for government redress. This distressing situation may well provide an important wake-up call but also highlights policy changes as a reaction rather than by prediction. Returning to the LGA statement, local government’s reputation can rest upon the ability to plan and effectively respond to emergencies.