Community and Police Consultative Groups development and reform programme and funding process for 2004/05

Report: 8a
Date: 03 October 2003
By: Clerk

Summary

This report makes proposals for taking forward the development and reform programme for London’s Community and Police Consultative Groups, building on the reports previously considered by the Committee in February and April 2003. Specifically, it:

• proposes that the previous plan to require every CPCG to adopt a standard constitution should not be proceeded with, but that CPCGs be recommended to consider for themselves a number of possible changes to their constitution in order to resolve matters that might otherwise be, or remain, ambiguous or not provided for.
• recommends improvements in the process for deciding on funding for CPCGs, and in the administrative and financial management processes by which the MPA supports CPCGs, to be implemented for the 2004/05 fiscal year.
• provides a timetable for the funding process of the CPCGs for 2004/05.
• outlines ideas that are under discussion with the London CPCG Chairs Forum for enhancing partnership working between the MPA and CPCGs collectively.

A. Recommendations

That

1. members adopt the proposals and recommendations contained in this report as a means of improving and strengthening the partnership framework between the MPA and CPCGs;
2. the Deputy Clerk write to all CPCGs explaining the legal advice now obtained, informing them that the MPA no longer proposes that there should be a standard constitution for CPCGs, and providing guidance to CPCGs on the clauses that they may wish to consider incorporating into their constitution to safeguard their members and officers; and
3. the Committee endorse the approach to the funding process for 2004/05 outlined in Appendix 2, and that further consultation be undertaken among members, and with CPCGs and Borough Commanders, before the funding application and assessment process is finalised.

B. Supporting information

1. A report to this Committee in February 2003 about a new approach for the MPA support of community - police consultative arrangements in Greenwich also identified the need for the MPA’s local consultative arrangements to evolve and adapt to reflect the changing landscape of community engagement, partnership and policing as well as the changing characteristics and needs of London’s diverse communities. That report envisaged the development of policy and plans over a period of time, in full consultation with Members of the MPA and other key stakeholders. Work towards that new strategic approach to community engagement is continuing. The Edith Kahn Lecture by the Home Secretary in June 2003 indicated a strong interest by Government in this area.

2. The Community Diversity Outreach (CDO) Unit is taking forward the reports from Community Consultation Co-ordinators appointed to review the arrangements in Greenwich, Hackney, and Kensington & Chelsea, with further project work. Also a Community Consultation Coordinator has recently been appointed to review and re-shape the Consultation arrangements in Hammersmith & Fulham. As it is likely that the work in each of these areas will result in a somewhat different model that seeks to make consultation more relevant and effective, and to link it more closely into local partnerships, the experience in these boroughs will contribute towards the medium term community engagement strategic framework.

3. This report is concerned with the immediate need to strengthen and improve the partnership framework between the MPA and the existing CPCGs, reflecting the commitment set out in the 2002/2003 Annual Report of the Consultation Committee, particularly for improvement in the administration arrangements and the financial management of CPCG funding.

4. In October 2002, the Authority decided, in the light of advice about the legal nature of the relationship between the MPA and CPCGs, and having regard to findings by the Director of Internal Audit, that the MPA should develop a standard model constitution for all CPCGs. The intention was to create a package of constitutional changes that each CPCG would be required to introduce, and that would have the effect of making the governance of CPCGs more transparent and accountable, whilst also addressing what was seen then as the need to define more clearly the legal relationship between the MPA and CPCGs. Progress in that initiative was reported to the Committee in February and April. The February report highlighted that the responses from CPCGs to consultation on the draft model constitution had been extensive, and that there was a strong theme of concern from the Groups at what they perceived to be a challenge to their independence. The April report stated that further in-depth analysis of the responses, with a view to redrafting the model template constitution, had identified an area of significant legal ambiguity, and that further advice was being sought.

5. That further legal advice has now been obtained from Thomas de la Mare of Blackstone Chambers, an experienced public law Counsel. An Executive Summary of Counsel’s advice is at Appendix 1. (A copy of the full written advice from Counsel is available to Members on request.)

6. In essence, it is Counsel’s advice that CPCGs are unincorporated associations; that the CPCGs are not (in the absence of any specific arrangement) agents of the MPA; that the MPA is not (in the absence of some specific representation) liable for the actions of CPCGs; that CPCGs are not some form of special statutory body; and that the legal standing of CPCGs as unincorporated associations has ramifications for the liability to third parties of their members and particularly officers (e.g. CPCG Chairs).

7. This advice contradicts the earlier advice given to the Authority, which, it now appears, was on the basis of inadequate background material and analysis.

8. The Deputy Clerk and Solicitor, together with the MPA’s external Solicitors, Field Fisher Waterhouse, consider that the advice now received from Counsel as summarised as Appendix 1 is a sound basis for moving forward. What this means is that there is no legal necessity, indeed no particular legal benefit, from the MPA’s perspective in insisting on a standard model constitution for CPCGs. However, there are a number of areas, detailed in Appendix 1, where Counsel’s advice points clearly to the desirability of CPCGs considering some amendments to their constitution (where necessary) to safeguard themselves. To the extent that the proposed standard constitution was intended to give assurance to the MPA about matters of governance and accountability of CPCGs, it is considered that those matters can be addressed – and are better to be addressed – through the annual mechanisms for funding and monitoring.

9. CPCGs invested a great deal of time and effort into responding to the draft model constitution. It is important to stress that their energies were not wasted, and that it was the detail and quality of their responses that focussed the MPA officers on the need to revisit the underlying legal assumptions.

10. The February report to this Committee referred to a review of the employment status of administrators for independently administered groups. That review was put on hold pending receipt of the further legal advice mentioned above. Now that the legal guiding principles are clear, the employment review will be re-activated.

11. Turning to funding and financial administration, the MPA Internal Audit of Financial Control of Consultative Groups (July 2002), identified a number of detailed improvements that need to be established to ensure consistency and that meet both fiscal accountability requirements and MPA objectives.

12. Removing the need for imposing any kind of organisational or constitutional straightjacket, also implicitly recognises that 'one size does not fit all'. It allows the recognition that local police-community consultative arrangements will vary according to need, circumstance, the type of group, and the geographical area covered. But the key is to match resources to need, and to ensure that any initiative is working toward solid measurable outcomes.

13. The legislative and mandatory requirements by which consultation must be undertaken with the public about policing in London has multiplied considerably in recent years and, also directly effects the nature of the funding relationship between the CPCGs and the MPA. These statutory requirements also place responsibilities on the MPA regarding the content and details of how consultation should be carried out. Not only does this include clear performance indicators regarding outcomes but also documented requirements of inclusiveness and non-discrimination, and of fiscal and public accountability.

14. Appendix 2 sets out a draft of proposed terms and conditions of MPA funding to CPCGs, to operate with effect from the 2004/5 funding round.

15. These proposals are intended to fulfil the MPA's relevant statutory obligations, and to satisfy the recommendations of the Internal Audit’s review of Financial Control of Consultative Groups.

16. It is envisaged that the attached appendices and a revised application form will be sent to all funded CPCGs. The papers are intended to describe the role of the MPA as a funding body, and to detail the content, objectives, criteria and approach to funding. They will describe the nature of the partnership and the expectations the MPA will have with funding recipients. Also included is an assessment guide and timetable as to how the MPA will manage the funding process.

17. The MPA needs also to improve its own competence in dealing with funding applications, and with the week-to-week financial administration of CPCGs. It is no good improving the quality of our decision- making on bids, without improving the basic systems for payment of the funding awarded, which at present leaves a lot to be desired both as to transparency and timeliness. There will be an overhaul of MPA processes, and it is intended to move the focus of control from line items in the funding bid towards monitoring by reference to aggregate spending and achievements by CPCGs. This will leave CPCGs with more discretion to get the job done within the allocated resources. Work on these issues is continuing.

18. In the autumn we propose to convene, in conjunction with the London Chairs Forum, a number of Workshops for Administrators and Treasurers of CPCGs to explain the new approach to the funding process and seek their advice and input in refining the application process.

19. In 2003/4 the London Chairs Forum received an increase in funding to enable them to employ an administrator for 15 hours a week, compared with 11 hours previously. It was agreed that further discussions would take place with the Forum about the way that their role might develop, with the increased staff support, in order to strengthen partnership working.

20. We have put some proposals to the Chair of the Forum:

• That the Forum should devise and implement a system for quarterly reporting to MPA (with a view to the Reports going to Consultation Committee) of significant issues discussed at CPCGs – the aim is to give the MPA a ‘real time’ (of sorts) update on policing matters that CPCGs regard as important both locally and London wide
• That the Forum collaborates with the MPA to organize a series of workshops for CPCG officers and staff about the annual funding process. This would be an annual event, so that CPCGs are briefed as to the budgetary context, our application form requirements, timetable etc. In year 1 (to be held Nov 2003) the workshop briefings could include ‘constitutional matters’
• That the Forum and the MPA establish a CPCG Development Panel, comprising officers of MPA and representatives of the Forum (Chairs and Administrators), to provide a standing Forum to consider issues around CPCG capacity and capability, and to work up proposals for the development and enhancement of local consultative processes, including a joint review and update of the Forum’s Good Practice Review.
• That the opportunities to enhance MPA communications with CPCGs, using the Forum as a conduit, should be explored. This might include publication of a newsletter by the Forum with input from MPA, and the MPA putting the CPCG contact details onto our website to reinforce their role

We will report the outcome of our discussions with the Forum to your next meeting.

21. Our objective here is, by means both of the new funding arrangements and the programme of work with the Chairs Forum, to ensure an enabling and capacity building process for existing CPCGs, alongside the development of a medium term community engagement strategy informed by the piloting of alternative models of local consultation if and when suitable opportunities present themselves and key local stakeholders are willing.

C. Equality and diversity implications

The information requested in the revised application form will contribute significantly to the MPA’s efforts in ensuring that its approaches to consultation are inclusive of London’s diverse communities, and will contribute to the consultation requirement of the Race Relations (Amendment) Act 2000.

D. Financial implications

There are no direct financial implications beyond what is contained in the Authority budget.

E. Background papers

• Written Opinion from Counsel dated 15 July 2003

F. Contact details

Report author: David Riddle, Tim Rees, and Judith Chrystie, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

CPCGs: Legal Status of Groups and Impact upon Constitution

Opening

This annex is split into two parts:

Part 1 – deals with the legal status of CPCGs and provides a summary of the written advice received from Tom de la Mare of Counsel. Full copies of the advice can be provided to members upon request.

Part 2 – identifies the clauses that the CPCGs may wish to consider incorporating into their own constitution to safeguard their members and officers. It is proposed that suggested draft clauses would be provided to the individual CPCGs to adopt should they wish.

Part 1 – Legal Status of Groups: Summary of Counsel’s Advice

Introduction

It became apparent during analysis of the Group’s responses to the proposed standard constitution that it was necessary to review the underlying legal assumptions that had informed the drafting of the constitution. Counsel was instructed to examine the legal status of Community Police and Consultative Groups and to advise whether the Groups could in general be classified as a particular type of legally recognised form. Three potential classifications were identified for Counsel:

• the Groups are unincorporated associations;
• the Groups act as agents for the MPA;
• the Groups are statutory bodies

In respect of each classification, Counsel was instructed to advise on the consequences for the MPA and the Groups – particularly in terms of exposure for liability in tort, contract and employment law claims.

A summary of the contents of Counsel’s written advice is given below.

Counsel’s opinion

Factual Background – history and nature of CPCGs

There is no legislative stipulation for the creation of CPCGs.

Home Office Guidance advises that CPCGs should be representative of the local community, independent from the police authority and recognised as being one of a number of methods by which police authorities can discharge their duties to consult.

Some communities were active in establishing the local group, demanding independence, electing chairman and drafting the constitution.

Advice

It is not possible to provide a universal answer to the question of CPCGs legal status – only generalised and ‘in principle’ advice. (Specific analysis should be made of the constitution, operation (historically and currently) and actions of each particular CPCG together with an examination of the statements or representations made by the MPA to, or about, the CPCG).

CPCGs are likely to be unincorporated associations.

An unincorporated association can be described as a number of individuals combining by means of either a written or an oral contract to pursue a common lawful purpose or aim. The extent to which unincorporated associations are formalised and have an official constitution can differ. Examples include sports, social and members clubs, political parties and community associations.

The written constitutions of CPCGs satisfy the requirement for a contract and they have common aims and objectives. Even where a CPCG does not have a written constitution, if there is an intention to create legal relations, an oral contract, or one implied from conduct, could be sufficient for the particular Group to be regarded as an unincorporated association.

An unincorporated association does not have a separate legal personality; it is not a legal entity in itself. This means that the association cannot:

• hold funds or assets;
• be liable in tort (defamation, negligence, occupiers liability);
• enter into contracts for goods and equipment or property leases;
• be an employer.

It is the members of the CPCG who will personally hold the funds, must enter contracts or leases, will be regarded as the employer and will be exposed in legal actions. If CPCGs are unincorporated associations, contracts should not be concluded in the name of the Groups. If the situation arises that a CPCG has entered into a contract under the erroneous belief that it was able to do so, the law will regard the party to the contract as being membership of the CPCG as a whole (i.e. all the individual members).

There will generally be no exposure for the MPA for the acts of the Groups. The exception will be if the MPA has stated or suggested (perhaps through representations and past actions) that it regards itself as responsible for the particular contract/action/decision of the Group. In this scenario, the MPA cannot renege on the previous statement or act.

Unincorporated associations should include rules regarding provision of indemnities by the membership; obtaining appropriate insurance; and the extent of any authorisations for individual members/committees to act on behalf of the whole membership.

Principal-Agent: General Advice

There is unlikely to be a relationship of agency between the MPA and the CPCGs. A relationship of agency arises when two parties agree that one party (known as the principal) will authorise the other party (the agent) to act on his behalf. The agent should hold himself out as the principal’s agent.

Regarding the CPCGs as an agent is based on a misunderstanding of the role of the Groups and statutory consultation:

• CPCGs are not designed to do the bidding of the MPA but to act as a counterpart creating a single consultee for the MPA;
• The constitutions endorse CPCGs’ independence and the Groups do not regard, or hold themselves out, as agents;
• The CPCGs would have limited creditability or utility as consultees if they were agents: the point of public law consultation is to get third party input;
• Contracting or working with other public organisations to discharge a statutory duty does not of itself create a relationship of agency (cf: local authorities relying upon housing associations or adoption agencies).

CPCGs as statutory body

CPCGs are not statutory bodies. There is nothing within the relevant legislation to require the creation of CPCGs or a similar body.

A police authority can discharge its obligations to consult the public by any reasonable method.

Duty to Inform

Although there is no duty on the MPA to inform the Groups that it regards them as unincorporated associations, doing so may be advantageous, particularly to provide clarity, reduce the scope for future disputes and allow the Groups to review their position.

Part 2: Suggested Clauses

As is evident from the summary of Counsel’s advice above, the fact that, in general, CPCGs should be regarded as unincorporated associations has a number of consequences for the individual members and officers. Counsel has recommended that in order to protect the members and officers of CPCGs, the Groups should consider whether to either incorporate a certain clauses into the constitution (where the constitution provides a power to amend) or, alternatively, that their members enter into a contract with each other to include the recommended clauses.

The suggested clauses are listed below.

1. A clause specifying which individual members or group of members (committees) are authorised to act on behalf of the whole membership, the extent of the authorisation and any procedures or processes to be completed prior to binding the membership;

For example, the constitution may state that one group of specified members acting as, say, the Human Resources Committee may be authorised to enter into employment contracts on behalf of the whole membership. Further, the Chairman and the Treasurer may be authorised to open a bank account on behalf of the whole membership. Moreover, another group may be allowed to enter into a lease for the premises occupied by the Group.

2. A clause requiring mutual indemnities to be provided by members to each other.

3. A clause requiring appropriate insurance to be obtained.

Suggested drafts of each clause will be provided to assist each Group determine whether it wishes to amend its constitution.

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