Issue - meetings

Report of Director Law and Governance / Monitoring Officer

Purpose of report

To recommend to Full Council that it agrees to enter into a Collaboration Agreement between Cherwell District and South Northamptonshire councils.

Recommendations

The meeting is recommended:

 1.1        To recommend to Full Council that it agrees to enter into a Collaboration Agreement between Cherwell District and South Northamptonshire councils, and to delegate to the Monitoring Officer, in consultation with the Leader of the Council, authority to finalise and enter into the Agreement based on the provisions provided by the Local Government Act 1972, the Local Government Act 2000, the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2012 and the Localism Act 2011.

Resolved

(1)          That Full Council be recommended to agree to enter into a Collaboration Agreement between Cherwell District and South Northamptonshire councils, and to delegate to the Monitoring Officer, in consultation with the Leader of the Council, authority to finalise and enter into the Agreement based on the provisions provided by the Local Government Act 1972, the Local Government Act 2000, the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2012 and the Localism Act 2011.

The Director Law and Governance / Monitoring Officer submitted a report for Executive to recommend to Full Council that it agrees to enter into a Collaboration Agreement between Cherwell District and South Northamptonshire councils.

Resolved

(1)          That Full Council be recommended to agree to enter into a Collaboration Agreement between Cherwell District and South Northamptonshire councils, and to delegate to the Monitoring Officer, in consultation with the Leader of the Council, authority to finalise and enter into the Agreement based on the provisions provided by the Local Government Act 1972, the Local Government Act 2000, the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2012 and the Localism Act 2011.

Reasons

It is important that both councils can continue to deliver services after 16 January 2019 which for most services will either be prior to separation taking place or permanent delivery arrangements being put in place for those services that cannot be separated. It is clear that in the interim there needs to be a legal arrangement that allows this and a Collaboration Agreement is seen as the most appropriate vehicle to enable this.        

Alternative options

Option 1: not to enter into an agreement between the councils. This is rejected as many council services would not be able to function.

Option 2: a Collaboration Agreement based on the provisions provided through the Local Authority (Goods and Services) Act 1970.

Section 1 of the Local Authority (Goods and Services) Act 1970 enables a local authority to provide another public body with goods or materials, administrative, professional, or technical services. The Act does not in itself exempt local authorities from complying with the Public Contracts Regulations 2015, however an exemption is provided by “the Hamburg exemption” (Hamburg (Commission v Germany) Case C-480/06). A Collaboration Agreement containing these provisions would allow two-way co-operation between the two councils with the aim of ensuring that the public services they have to perform: are provided with a view to achieving objectives they have in common; is governed solely by considerations relating to the public interest; and less than 20% of the activities concerned by the co-operation are performed on the open market.

Whilst it is considered that the Hamburg exemption could provide appropriate authority to enter into such an agreement, there is a potential argument that the Hamburg exemption applies only to services that Councils “have to perform” rather than any discretionary services. Therefore, any discretionary services over the financial threshold in the Public Contract Regulations 2015 would be subject to the procurement rules. Given that discretionary services are included in those which would be shared it is not considered that the Local Authority (Goods and Services) Act 1970 would be the best option for the Councils due to it carrying a risk of challenge.