A month ago, I doubt any Suffolk resident had any need to know what a section 5A report is. I have been in local government a long time and had never seen one. Nobody I asked could remember one at Suffolk County Council. On 9 September every county councillor was sent one. On Thursday 17 September the council’s Cabinet must consider it, in public, at Endeavour House. Five minutes on what it is will help you judge what happens next.
Every council is required by law to employ a monitoring officer (MO), a senior official whose job is to make sure the council follows the law and its own rules: the council’s own watchdog, on the inside, with a legal duty to bark. Most of the time the work is quiet: advice, a procedure adjusted, a problem headed off before it becomes one. The law gives the watchdog everyday tools for that.
Section 5A and how it works
Section 5A of the Local Government and Housing Act 1989 is not an everyday tool. It is the emergency cord, and like the one on the train it comes with a warning about improper use. An MO does not pull it for a routine slip. If he thinks the council’s Cabinet, or a member of it acting alone, has made a decision in a way that breaks the law, he must prepare a formal report. Not may: must. Parliament reserved it for serious failures, and the duty to pull the cord belongs to the MO personally.
Parliament has laid down what happens to the report. While preparing it, the MO must consult the council’s two other statutory guardians, the head of paid service and the chief finance officer. When it is ready, a copy must go to every councillor, all seventy of them, not just the leadership. From the day those copies go out, a clock runs: Cabinet must meet to consider the report within 21 days, and until it has done so the council may take no step to give effect to the decision concerned. Cabinet must then prepare a response of its own, saying what it will do, when, and why. Parliament understood that a finding of unlawfulness loses its value if left to gather dust, so it built a process for speed and spotlight.
What happened in Suffolk?
Now to Suffolk County Council’s report. It concerns the decision of the council’s Reform Leader, Cllr Michael Hadwen, on 18 June to issue judicial review proceedings over local government reorganisation in Suffolk. It finds two breaches of the regulations that govern how Cabinet decisions are recorded and how councillors get to see the papers behind them. The first is that the written record of the Leader’s decision was not produced when the law required. The rules put that duty on the councillor who makes the decision, and they exist so that residents and councillors know a decision has been made while there is still time to question it. The second is that documents I asked for as a member of the scrutiny committee, which the law says must be supplied within ten days, were not.
The report describes both breaches as minor and inadvertent. It says corrective action has been taken, without saying what. It recommends no further action beyond training and a look at procedures by a working party. It is five pages long. A fuller account, a 26 page report the MO wrote on 3 August, was sent to group leaders – marked sensitive because of the court case – and has not been published. I have written elsewhere about whether those five pages hold up.
A checklist
The law makes it easy for readers to spot the items.
1. The date. Copies went to Suffolk’s councillors on 9 September, so the 21 days run to 30 September. Suffolk’s Cabinet meets on 17 September. That one is met, but only because the clock started late. The MO wrote his fuller findings on 3 August; the short version that starts the 21 days did not go out for another five weeks. Parliament set the timetable, but the council chose the day it began.
2. The decision. Cabinet is not there to receive the report meekly. The law requires it to decide what action to take, and to say why. Watch whether it simply accepts “no further action” or asks the questions the report leaves open: what the corrective action was, why the decision was published only after the period for challenging it had passed, and whether the alternative options were considered. I referred the whole decision to the cross-party Scrutiny Committee on 29 June; that examination is on 1 October, and Cabinet can send the report there if it chooses.
3. The fuller report. The court case has ended, and the Leader has said the legal advice will be published. There is no longer a reason to withhold the 26 pages. Whether they are published before Thursday, so that Cabinet and the public look at the same facts, tells you how confident the administration is in the five.
4. The language. Since August the Reform administration at Suffolk County Council has called this a minor procedural matter, most recently in the days before the papers were published. Parliament built the section 5A process because it decided that a council’s executive breaking the law is never a minor matter: that is why there is an emergency cord at all, and why pulling it alerts every councillor. The administration says this breach is minor. Both cannot be right. On Thursday, in public, Cabinet must choose which description it accepts, and that choice will be minuted.
Section 5A is not a courtesy the administration extends when convenient. It is the legal machinery that operates because the ordinary machinery failed. How a council handles its watchdog tells you more than anything the watchdog finds.
Martin Cook is a Labour councillor on Suffolk County Council
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