The LGIU’s Local Democracy Research Centre, together with Browne Jacobson and Lawyers in Local Government, are investigating the changing role of the monitoring officer in English local government. The Monitoring Officer’s responsibilities – to ensure legal governance and conduct in local government – are essential for good democratic governance. But how much do we already know about Monitoring Officers?
What is a Monitoring Officer?
A Monitoring Officer is the statutory officer responsible for the legal governance of a local authority in much the same way that a section 151 officer is responsible for a council’s finances. The majority of the role is set out under section 5 of the 1989 Local Government and Housing Act. They have a legal duty to ensure councils fulfil statutory obligations and apply their codes of conduct. This includes investigating and reporting on anything the authority does that has the potential to be an illegal action or any action that might count as maladministration.
According to the Lawyers in Local Government’s Monitoring Officer protocol, when illegal actions or maladministration occurs or is reported, it is the monitoring officer’s responsibility to first attempt to rectify the issue amicably. However, in the event that the Monitoring Officer feels the issue is important enough, it is their duty to fully investigate the potential infraction and prepare a statutory report on the subject. They also act as consultants to the relevant authorities and the authority’s Chief Executive Officer and Chief Financial Officer in case of breaches.
Outside of issues of illegality or maladministration, Monitoring Officers are required to act as consultants to anyone within the local authority on matters of legality, maladministration, and impropriety.
The role has a range of other responsibilities away from the formal legal perspective, some of which include:
- Responsibility for the local authority’s constitution.
- Responding to complaints from the local government ombudsman.
- Updating the other statutory officers on any changes in legal or ethical standards.
- Informally advise on and investigate allegations of misconduct.
- Prepare training programmes on ethical standards and code of conduct.
- Advise on cases of political restriction exemptions.
- Being the principal adviser on the standards committee and panel.
However, there may be a difference between what a Monitoring Officer’s statutory responsibilities are – the minimum requirements they have to perform in order to ensure legal compliance – and how they spend their time in their day-to-day role. Our research will go past the legal duties of Monitoring Officers, to determine what the performance of their role looks like in practice. How do they perform their duties? Are they able to perform their statutory role effectively? What support are they given by their wider local authorities? All of these questions are central to our research.
Who becomes a Monitoring Officer?
The statutory officers of a local authority are sometimes required to have specific qualifications, The Section 151 Officers, for example, must be a member of a specified accountancy body outlined in legislation. There is no such requirement for a Monitoring Officer. This has been criticised by the Law Society which has called for changes to the legislation so that the role of Monitoring Officer can only be held by someone with legal training and experience who would be a solicitor, barrister or legal executive, but so far the government has not indicated that there will be any change.
However, given that not all Monitoring Officers have any legal training, our research will look into how different Monitoring Officers, both with and without legal training, have approached the role. Is there any significant difference in the fulfilment of statutory duties, the relative status of the Monitoring Officer, or the governance of a local authority dependent on the legal qualifications of the Monitoring Officer?
What are the issues facing Monitoring Officers today?
According to various commentators, the status of the role of the Monitoring Officer has faced a significant decline over the last decade. This is due to cutbacks across the local government sector affecting capacity but also changes to the standards regime following the implementation of the Localism Act (2011). The job carried out by Monitoring Officers has become increasingly difficult over this period. Other significant challenges include:
The combination of the role with the Head of Legal Services has become very common despite the fact that they require two very different skill sets:
- Access to resources has been reduced.
- Demand for legal services has increased.
Plus, Monitoring Officers are less likely to be part of the top table within their local authority, despite being a statutory role.
Increasing caseload work alongside the decrease of status and importance of the role has meant that there has been a decline in how effectively Monitoring Officers can perform the duties and responsibilities discussed in the first section effectively. It is unsurprising, then, that there is a risk of mistakes and deteriorating standards of governance in local authorities.
The appeal of becoming a Monitoring Officer has also declined due to these added pressures and decline in status. There is already a historically high turnover rate: in 2022, 58 Monitoring Officer roles were advertised which was higher than the last three years combined.
How has the role of Monitoring Officer changed?
As the nature of local authorities has changed, the Monitoring Officer’s role within it has also changed. Reduced council budgets have put more pressure on Monitoring Officers but other less extreme changes to local governments have also altered the ways in which Monitoring Officers have to carry out their roles. Increasingly, Monitoring Officers’ have been associated with keeping control of member conduct and investigation into misconduct rather than ensuring the ongoing corporate health of the local authority.
International research on local legal governance
Perhaps unsurprisingly, given the limited research on local legal governance in England, the international research is in similarly short supply. It is worth noting that although the Monitoring Officer is a distinct role held by an individual in England, this is not necessarily the case in international local government systems, and often the functions performed by a Monitoring Officer in England are part of an ecosystem of governance and scrutiny that may be diffused across several local and national institutions.
For example, in Ireland, there are local audit committees made up of internal and external members, and a national Local Government Auditor, alongside this there are designated officials in each local authority to ensure compliance with national standards in public office. Together, these bodies make up a complex system for ensuring financial and legal compliance, similar to the system in England.
Overall, though, international research on local legal governance is limited. To provide a more thorough review will require extensive work to gather and compare different approaches, similar to our ongoing project into local government finance systems.
Our research
Throughout our background research on this topic, it became obvious that the importance of monitoring officers’ responsibilities – to ensure legal governance and minimise the risk of service failure in local authorities – is not reflected in the amount of attention they receive in research or in policy debate. The decline in regard that the role appears to have in most local authorities will potentially have significant and damaging repercussions for the health of governance, local democracy, communities and services.
Our research will be a valuable first step towards understanding the role played by monitoring officers, the people behind the statutory duties, and the challenges they face. It is our hope that following our research that the role of the Monitoring Officer will receive the due attention and support it deserves as a vital component of good democratic governance in local authorities. We will work with our partners, Lawyers in Local Government and Browne Jacobson, to advocate for restoring Monitoring Officers to their proper place within local government, by increasing awareness of this vital role, improving guidance and legislation, or building capacity and support.
Find out more about the ongoing work at the Local Democracy Research Centre here:
