New Year Resolutions for the Monitoring Officer

Be aware of the national and local context

Not necessarily a legal point, BUT it underpins all you may have to do as Monitoring Officer. You need to understand and be seen to understand the national context and local context (eg austerity and your council's budgetary position).

Position yourself so you and your team are involved in a timely and effective way to give legal advice

Problems arise when advice is sought at the 11th hour with insufficient time to really do justice to it. So get the approach and ethos the way you want it before you have a major issue so the need for you/your team's involvement is handled well within your council.

Be a legal enabler

Are you and your team legal enablers or road blocks? You may be clear, but what is the perception of others? If you are not where you want it to be, what are you going to do about it?  

If you are in a position where you have to give 11th hour advice, think carefully about how you frame it

As tempting as it is, shooting from the hip and proclaiming something is illegal because you have not had time to consider the matter properly may well come back to bite you. Explaining that you cannot be sure of the legality of the proposal because of the time constraints you have been placed under, but with time you would be able to firm up your view and probably devise a method of achieving the outcome legally will serve you better.

Ensure that the decision making process is properly followed

Most successful challenges succeed by finding fault or a failure in the process, rather than a challenge to the merits of the decision itself. Crucially the courts have been very reticent to interfere in actual decisions and especially decisions reached by members. As a consequence, the process of decision making is critical and areas to focus on include:

• follow your (correct) procedure
• effective and legally sound consultation
• acting within remit
• making rational and evidence based decisions
• taking into account all relevant (and no irrelevant) considerations
• acting for a proper purpose
• being ECHR compliant
• decisions are proportionate
• properly reasoned decisions

Pay attention to the legality basics, including:

• the matter must be determined lawfully (eg what is the council's process for dealing with this (and follow it), is it a decision for members or delegated to Officers)
• the decision must be within the councils powers ie intra vires (and not ultra vires ie illegality, irrationality, procedural impropriety)
• is the proposed decision Wednesbury reasonable (ie can it be objectively justified as a rational and reasonable decision).
• avoid bias/predetermination

Don't forget the practical issues, they can have a legal consequence, for example:

• the decision maker should have access to and read all the papers
• the taking of timely legal advice is relevant and important
• have comprehensive reports (R (ex.p. Hill) v Cornwall Council [2016]) and accurate minutes with (where appropriate) reasons
• meet any obligations regarding transparency, openness and lawful access to information
• how any decision making meeting 'feels' and is run effects what happens next

For more information please contact Mark Heath in our Public Sector team on 0117 314 5637.