Date: 26 October 2017
Re: Roles and responsibilities of Councillors in relation to major policy decisions affecting the Population of the Isles of Scilly.
I feel compelled to write to you regarding this matter because I believe that “council” has somewhat lost its way and has forgotten, it’s reason for its existence and it’s day to day operations.
This letter does not seek to criticise, rather it seeks to assist councillors so that they can bring a better focus to their duties. Many times in my working life, I have been the recipient of unsolicited advice and have always been the richer for that advice. The giver of the advice knew that the advisee may well not be a willing recipient. That may also be the case here and I have spent many hours mulling over whether to write this letter with these thoughts in mind. The thing that finally made up my mind to spend the time to do the research and write such a letter is the benefit that it would be to the aged of Scilly who need to be treated with the respect of us all. I hope that the letter is taken in the spirit it is written.
The following letter seeks to clarify some of the issues which have recently been put before council and which, in my opinion should have been handled better by the council as a whole.
One of these issues is the closure of Park House, but it raises a much bigger series of Questions which I believe need to be addressed.
Those Questions are:
1/ What are the duties and responsibilities of Councillors?
2/ What are the duties and responsibilities of Council Officers?
3/ What are 1/ and 2/ Governed by?
Firstly let me tell you a bit about me.
I was born in St Mary’s Cottage Hospital in 1954, the son of Eddie O’Grady and Nancy Hayles. Eddie was born on the Islands in 1921. Eddie’s mother Margaret Toomey was Scillonian born as well in 1895. She was the daughter of Daniel Toomey who worked in the Coastguard and who had been posted to Scilly towards the end of the 1800’s. Eddie’s father Michael O’Grady was posted to Scilly by the Royal Navy for the duration of hostilities in the first war.
All of my Uncles and my father were born in our family home, Innisidgen, in Church Street. Like many Scillonians Eddie left Scilly during the war and joined the Royal Navy to serve on a Destroyer Escort which completed operational duties in the Atlantic, in the Arctic and the Mediterranean.
Following the second war my father purchased “Innisidgen” under the Returned Serviceman’s Scheme.
At the age of four, I attended Carn Thomas Primary School and at aged 11 I went to the mainland to board at Truro School. When I was 18 I came home for a while before joining the West Midlands Police. In 1978, I emigrated to Australia.
Like many Scillonians, I worked on the Farm at Longstone and Trenoweth picking flowers and potatoes and on the boats in the summer season.
So Scilly is my home and has been the home of my extended Toomey/O’Grady family for over 120 years. Family still live on the Islands.
Also like many other Scillonians I have had to leave the islands to find work. However many of the people who I grew up with and who mentored me through my childhood still live on Scilly and it is my hope that in their latter years they will be treated with the respect they warrant and deserve.
Through the internet, I take a keen interest in what’s happening on the islands and I have many Scillonian friends.
My intention in this letter is to follow through the answers to the three Questions in a logical and common sense way and to urge you as a Councillor to follow this path in your decision making processes.
I was disappointed, along with many other Scillonians to learn of the sudden closure of Park House, particularly because the elderly of Scilly would have to leave their home and go away to the mainland. The disruption to their lives at such an age is a callous and cruel circumstance, not to mention to their families as well.
It seemed to me a decision which was taken without due process and by the wrong person, a Council Officer, who claimed that it was a decision of an Officer because of the “Scheme of Delegation” approved by Council.
Apart from Schemes of Delegation and Local Government Acts of Parliament, there is an overriding reason to look after the elderly of Scilly. That reason simply put, is because every person when they reach old age deserve the same care that has been accorded to the elderly for years now. It’s the right thing to do as humans and as a community. It’s a moral imperative.
Duties and responsibilities of Councillors.
At this point I wanted to make some points about the duties and responsibilities of Councillors.
Councils all over the United Kingdom are the result of a democratic process, where generally speaking the people (electorate) elect by ballot, a series of representatives (Councillors) to provide certain services which are spelt out in the Local Government ACT 1972 and subsequent Local Government and other Acts.
The Local Government Act 1972 is a document which defines what a Council is and what it is capable of doing. It was passed in the National Parliament in Westminster and is the law of the land. In effect it delegates powers to local authorities.
Generally speaking decisions are made by “Council” in a series of meetings covering various issues. Delegation is given by the full council to sub committees and these meetings are covered and run to a set of Standing Orders.
Further legislation was enacted in 2000 to do with Local Government and can be found in the Local Government ACT 2000.
Duties and responsibilities of Council Officers.
To assist Council in it’s decision making process it is necessary, to have a series, of what can loosely be described as experts (Council Officers), to advise Councillors on a range of issues about which decisions needs to be made.
This is normally done by writing briefing papers and explaining options to Council.
It is important to understand that decision making is the prerogative of the Council and NOT of the Officers.
This is common sense. If it were the prerogative of the Officers, then there would be no need for Councillors. Please also see discussion below about the general principles of delegation of authority.
What are the Legal requirements of Councils to follow.
I have already mentioned the main Act of Parliament by which Councils are formed and operated. The Local Government ACT 1972. The link below will lead you to this ACT and its precise sections. If you are unsure (as a Councillor) what the ACT says about your responsibilities as a councillor, please read it. If you are still unsure seek expert advice from the Council Solicitor. Section 265 of the Act specifically mentions The Isles of Scilly Council.
Please see below for the specific sections of the ACT which relate to delegation of powers from Council to Officers.
As well as this law there are many other Laws which govern how we live and which the council may or may not be responsible for enforcing/administering.
Licensing Laws are one, the operation of Pleasure Craft another. The one which was used as part of the justification for closure of Park house was the
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
Which can be found here.
There are many other Acts which may or may not be applicable. Always a good idea to ask “What Act of Parliament covers this?” and then a good idea to go and read it. Health, Education and Policing come to mind.
General Principles of Delegation of Authority.
Generally speaking, where authority to do something is given, it is given formally. The Local Government ACT 1972 is a formal document which allows local authorities to operate. It prescribes the manner in which they operate and gives them bounds. Further specific powers and limitations are given to Local Authorities under the Local Government Act 1974 and 2000.
Generally authority can be given formally in different ways. For example:
Police Officer by warrant and specific Acts of Parliament,
Chemist by License (associated with an Act of Parliament).
Boatman by License.
Food service to public by License (associated with an Act of Parliament).
A Publican by License (associated with an Act of Parliament).
The ability to operate Park House is formally given to the Council by the The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The Council are a registered body under these regulations. The registered person then has to (in the case of the Isles of Scilly Council) Part 3 Section 1 (6) give the Commission the name of a “nominated individual” who manages the facility under the regulations.
When looking at some of these occupations, it is obvious that they are specialist fields and that they are regulated by Act of Parliament.
For example a Police Officer and a member of the public have a power of arrest under the Common Law, but the member of the public doesn’t have a power of arrest under certain statutes (Acts of the Parliament). They are incapable of delegating his/her authority to a member of the public.
In each of the examples above each profession has responsibilities spelt out by Statute and there is NO power to delegate that responsibility to another person.
Imagine a chemist delegating their dispensing responsibilities to the shop assistant. Or, the Licensed food handler blaming the Ecoli infection on the dishwasher. The Licensed boatman saying to the crew, you take her out today, I’m tired and want to sleep in. The Publican saying to the bar tender, you are responsible for the whole deal for the next week whilst I go away to the mainland for a holiday.
The general principle is called Delegatus non potest delegare. Which basically means the delegate cannot delegate. That which is your responsibility remains your responsibility.
Here is an interesting Legal paper which describes the principle in actual cases. It shows the minefield one can enter when even experienced administrators are delegating.
I do not bring this up as an example of absolute fact, but as an example of the care with which administrators should take when going about their responsibilities.
Any delegation of authority which is not correct is called Ultra Vires. Or beyond one’s legal power or authority.
Discussion as to the Specific case of the closure of Park House.
It could be argued that the doctrine of Delegatus non potest Delegare doesn’t apply here because Section 101 of the Local Government ACT 1972 specifically allows Council to delegate.
101 Arrangements for discharge of functions by local authorities.
(1)Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—
(a)by a committee, a sub-committee or an officer of the authority; or
(b)by any other local authority.
Section 100G of the Act also provides
100G Principal councils to publish additional information.
(1)A principal council shall maintain a register stating—
(a)the name and address of every member of the council for the time being [F2together with, in the case of a councillor,] the ward or division which he represents; and
(b)the name and address of every member of each committee or sub-committee of the council for the time being.
(2)A principal council shall maintain a list—
(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and
(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;
but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.
For the purposes of this discussion the Section 101 component is called “Scheme of Delegation” and after a diligent search of the council of the Isles of Scilly Website I could not find the document. However I trawled back through the Full Council minutes and found the applicable document appended to those papers for the council meeting of 12 May 2015 (Reports pack 1252015 full Council pages 161 – 236 (75 pages)). However on that day the Scheme was not passed and it was interesting to note an article in Scilly Today on May 15 2015 which was scathing of the proposed scheme. The article quoted adverse comments by three councillors.
The scheme was passed at a Special full Council Meeting on 9th June 2015. (Public reports pack 09062015 Pages 1-84 (84 pages? an additional 9 pages.)
The actual document in the reports pack should not have been presented to Council in the form it was presented. The numbering scheme is all wrong. Section One starts of at 1.1 as does section 2 and section 3. Etc.
Whilst section 101 of the local government ACT 1972 gives the Authority to refer powers, it is not a mandatory requirement.
A thorough reading of the document gives the delegation to Officers of a wide range of powers without recourse to the Council, rendering the Council Officers in charge of virtually everything and the democratic process trashed.
The document purports to define the day to day operational delegation of powers from Council to Officers, but then goes and delegates almost every decision to Officers.
In this regard the document is confusing and contradictory. On the one hand it talks about delegation of statutory powers (which by definition are already the responsibility of Officers of Council) and then other powers which cannot be delegated and are the responsibility of Council.
I will quote from the Reports pack document because I could not find this Scheme of Delegation on the Web site (It may have been available for public perusal at the Council Offices however).
Under each Quote is a Question that the Quote raises in my mind.
Section One Introduction.
1.5 Similarly there are a number of decisions of the Authority that remain, statutorily,
solely within the remit of Members, for example, and again not exhaustively;
- a) setting the Council Tax base;
- b) setting budgetary requirements in relation to service areas; and
- c) adopting plans and strategies in relation to Council Policy.
Question. Isn’t the provision of a Residential care facility a plan or a strategy? Isn’t adopting a new plan to not provide a Health Care Facility, a change in Council Policy and therefore for the council to decide?
1.8 It is incumbent on the Officers referred to in this Scheme of Delegation to keep
Members properly informed of activity arising within the scope of these delegations and to ensure a proper record of such activity is kept available to Members and the
public in accordance with relevant legislation.
Question. Was this clause adhered to leading to the closure of Park House?
In order to ascertain whether members were kept properly informed, I analysed the Council minutes from 25 October 2015 to March 2017 and could find no talk of an immediate crisis, although in the documents produced to the relevant committee of council there was mention of a “Staff Plan” for Park House but the actual plan was not in the documents presented to members. This report was 36 page in length and referenced all the relevant Council minutes. There was no talk of a crisis or closure of Park House.
1.9 The Chief Executive and Senior Managers must consequently ensure that
appropriate systems are in place for the recording of decisions and actions taken as a
result of the exercise of a delegated power. It is incumbent therefore that regular
reports, and at least once during each committee cycle, be presented to Council or
the relevant Committee summarising any decisions taken under this Scheme of
Delegation and other urgent provisions contained within the Council’s Standing
Orders. These reports will be presented to Council, and/or the relevant Committee
for noting as Part 2 reports.
Question. Was this clause complied with?
Section Two General Provisions. (Note the numbering)
1.3 Any delegation does not include:
- a) any matter reserved to Full Council or its committees;
- b) any matter which by law may not be delegated to an officer.
Question. 1.3(b) Is the Council as the registered user able to delegate to the nominated Officer the power to close the Residential Care Facility, Park House? Bearing in mind the Delegatus non potest delegare discussion above.
1.4 The exercise of a delegated power, duty, or function shall;
- a) be subject to the Council’s policies;
- b) not amount to a new policy or extension of or amendment to an existing
- c) be subject to the requirements of Standing Orders, Financial Regulations,
Procurement rules, and Corporate Standards;
- d) be subject to budget.
Question. 1/ Was the closure of Park House subject to the council’s policies? In other words what was the council’s policy as to provision of residential care?
2/ Was closure of Park House a new policy or extension of or amendment to an existing policy?
1.7 Delegation to Officers is subject to:
- a) the right of the Council, Committee or Sub-Committee to decide any matter
in a particular case;
- b) the Chief Executive, Senior Managers, or other Officer, in lieu of exercising
his/her delegated power, deferring to a Committee or Sub-Committee for a
- c) any restrictions, conditions or directions of the Delegating Council,
Committee or Sub-Committee.
Question. Was this clause in the scheme considered fully by the Officer before taking the decision to close Park House?
1.8 In exercising delegated powers, the Chief Executive or other officers shall;
- a) comply with the requirement of the Corporate Legal Standards and shall
address all legal, financial and other professional safeguards as if the matter
were not delegated;
- b) exercise the delegation so as to promote the efficient, effective and
economic running of that business unit, the Council, and in furtherance of the
Council’s visions and values;
- c) maintain a full record of actions taken and where and when appropriate (and
at least once during each committee cycle) report back to the Council’s
appropriate Committee or Sub-Committee as to the exercise of those
delegated powers; and
- d) carry out any necessary and appropriate consultation prior to the
engagement of the delegated power.
Question 1/ What checks were done to make sure that the decision was legal before making it?
2/ Where is the full record of all actions taken, they were not before the relevant committee according to my research of the council minutes?
3/ What consultation and with whom was carried out prior to engagement of the delegated power?
1.11 A register of delegated powers shall be maintained by the Senior Manager:
Democratic and Corporate in his role as Monitoring Officer. Any new delegations
will be added to the register as they are made by delegating bodies or committees.
All new delegations must be brought before Members for approval. Officers should
take care to inform themselves of any subsequent changes to the register before
relying on this document. Officers should ensure that the Senior Manager:
Democratic and Corporate is made aware of any new or additional delegations made
by delegating bodies so that the register of delegated powers is fully and accurately
maintained. This register shall be available for public inspection. Those matters
contained in this Scheme of Delegation will form the initial basis of the register.
Question. Where is this register? It is also a requirement under statute. Section 100G of the Local Government ACT 1972.
1.14 Delegated decisions shall not involve the adoption of a new policy or a major
extension of an existing policy of the Council and shall exclude any case where the
magnitude or controversial nature of a proposal is such that the Council or
Committee should take responsibility for a decision.
Question. Do I really need to spell the Question out?
Surely Blind Freddy can see that the closure of Park House is a change in policy and is of a hugely controversial nature.
1.19 All matters of interpretation of this Scheme of Delegation shall be determined by the
Chief Executive acting as Head of Paid Service in consultation with the Chairman and
Vice Chairman and should be interpreted widely to aid the smooth running of the
Authority, the effective deployment of human resources and to allow for the
efficient delivery of services.
Question. Isn’t this giving too much power to the Chief Executive?
Section 3 Matters for referral to Council, committees or sub committees.
Once again note the numbering.
1.1 If any of the following criteria apply, the matter should be considered by Elected
Members at Full Council, a Committee or a Sub-Committee. The opinion of the Chief
Executive, in consultation with the Chairman of Council or Vice Chairman of Council
together with the Senior Manager of the business unit responsible as to whether or
not these criteria apply shall be final and conclusive:
- a) Matters of significant political impact, including those which impact
significantly on the issues of Members’ accountability to the electorate.
- b) Matters of substance relating to key and significant projects.
- c) Matters which raise specific issues requiring choices between options which
themselves might have knock on-effects elsewhere, for example in relation to
funding arrangements, or completion of specific larger projects.
- d) Where significant risks have been identified in proceeding with the issue as a
result of the completion of an appropriate risk analysis.
- e) Where issues of timing, presentation, or relationships with other bodies (e.g.
other Councils, outside bodies, central government) have become critical to
- f) Where there is significant deviation from the original intention of a project
- g) Requires a decision which was not anticipated in the Council’s agreed plans
- h) A proposal for a detailed Strategy/Action Plan which is consistent with, but
goes beyond the intended scope of an agreed council policy.
- i) Where a high level implementation decision is required
Question. What part of this clause didn’t the council Officer understand?
a)This had a significant political impact (Care of the Aged).
b)This was a matter of substance relating to key and significant projects. (Care of the aged)
- c) Certainly a knock on effect for users of the service and their families.
- f) This is a significant deviation from an original project plan. Original plan was Care of the Aged in Park House and change was closure of Park house.
- g) refer again to Council minutes re the decision being anticipated. It was not.
- h) It certainly goes beyond the intended scope of an agreed Council Policy.
I think I have made my point in the above discussion.
The council CEO claims that the Officer in this case had the right to close down the Facility.
- Under Statute as the nominated Individual.
I argue that the registered user cannot delegate their statutory powers as the responsible individual (The delegate cannot delegate).
The Regulations which cover the operation of Park House are prescriptive of what duties the nominated individual must do. They do not mention a power to cease the operation of the facility, rather they are made to ensure the safety of residents in prescriptive regulations.
2.Because of the Scheme of Delegation.
A simple reading of the Scheme of Delegation shows that this is not the case.
It is my contention that the officer’s action was Ultra Vires. (beyond one’s legal power or authority) and that the document which councillors approved goes far too far in delegation of their powers. Rather it is an abrogation of powers by Councillors.
I urge councillors to take the time to look on the Internet at other Local Authorities and their Schemes of Delegation. They are nowhere near as detailed or as general in the assignment of powers to Council Officers. Many of the ones I looked at are much bigger councils as well.
Finally this letter is NOT a complaint, nor it is a lecture, it’s an attempt to protect the vulnerable people of Scilly who at the end of their lives need residential care. What could have happened to them and their families was callous in the extreme.
I urge the Councillors to revisit the 84 page Scheme of Delegation and vote it down and take back their statutory power. In my opinion the scheme goes far too far in its scope and reach and gives unelected officers far too much power.
Vincent O’Grady. B. Bus (Mkt).