The DEFCON Monitoring Officer

The key statutory role of the Monitoring Officer

The other week a vacancy caught my eye. It said the Director of Law and Governance role would also carry an additional £12.5K or just over £1K a calendar month for undertaking the Monitoring Officer (MO) statutory role. The statutory role is essentially pursuant to section 5/5A of the Local Government and Housing Act 1989 (LGHA) and the Localism Act 2011 (the register of Councillor’s interests plus sensitive interests).

But no MO just does the statutory role. The best statement of their workload is set out in the 2024 Code of Practice on Good Governance for Local Authority Statutory Officers (Solace, LLG, CIPFA)[i].

In addition, the MO can expect to be consulted by the Local Auditor and others carrying out assurance checks.

Section 5/5A

The question is when exactly does the trigger point for the MO statutory action under section 5/5A take effect?

The key part of the section says:

S.5 Designation and reports of monitoring officer.

(1) It shall be the duty of every relevant authority—

(a)to designate one of their officers (to be known as “the monitoring officer”) as the officer responsible for performing the duties imposed by this section and, where relevant, section 5A below; and…

2) Subject to subsection (2B), it shall be the duty of a relevant authority’s monitoring officer, if it at any time appears to him that any proposal, decision or omission by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority or by any joint committee on which the authority are represented constitutes, has given rise to or is likely to or would give rise to—

(a) a contravention by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority or by any such joint committee of any enactment or rule of law or of any code of practice made or approved by or under any enactment;..

…to prepare a report to the authority with respect to that proposal, decision or omission.

(3) It shall be the duty of a relevant authority’s monitoring officer— (a) in preparing a report under this section to consult so far as practicable with—

(i) in the case of a relevant authority which is the council of a county or county borough in Wales, the person who is for the time being the authority’s chief executive and with their chief finance officer;

(ii) in the case of a relevant authority which is a corporate joint committee, the person who is for the time being appointed as the authority’s chief executive and with their chief finance officer;

(iii) in the case of any other relevant authority, the person who is for the time being designated as the head of the authority’s paid service under section 4 above and with their chief finance officer;

And when an Executive decision is in question – see S.5A:

5A Reports of monitoring officer—local authorities operating executive arrangements

(1) Where a relevant authority are operating executive arrangements, the monitoring officer of that authority shall be responsible for performing the duties imposed by this section.

(2) It shall be the duty of the monitoring officer of a relevant authority that is referred to in subsection (1) above, if at any time it appears to him that any proposal, decision or omission, in the course of the discharge of functions of the relevant authority, by or on behalf of the relevant authority’s executive, constitutes, has given rise to or is likely to or would give rise to any of the events referred to in subsection (3), to prepare a report to the executive of the authority with respect to that proposal, decision or omission.

(3) The events referred to for the purposes of subsection (2) are—

(a) a contravention, by the relevant authority’s executive or any person on behalf of the executive, of any enactment or rule of law; …

Now, let’s examine the MO’s statutory duty. A S. 5/5A report is a serious matter, not to be taken lightly. It’s our local government governance equivalent of ‘going nuclear’. When I was younger, you would see ‘fire axes’ cabinets in corridors accessible by a sheet of breakable glass. Such items were only to be accessed in case of fire. Likewise, a S. 5/5A report should be seen as the MO’s fire axe and not to be rashly used. So how is S. 5/5A to be utilised?

S.5 places a statutory obligation on the MO (see S.5 (3)) to consult with the Head of Paid Service (S.4 LGHA) and the Chief Finance Officer (s.151 Local Government Act 1972) who together make what is called the ‘Golden Triangle’. This is where the Code of Practice helps. Properly negotiated the triumvirate are both a sounding board and force multiplier for the MO.

This is an important message, because while the MO has their own agency, the realpolitik is that the Triangle is much more effective when the three speak from one voice without division. But, that’s not all. The Triumvirate should take care with any Rubicon crossing to ensure they actively consult with the political leadership. A S.5/5A report has massive implications. To find failure in governance will have major implications for staff, politicians and the local authority’s reputation. Just as a Local Auditor’s report in the public interest or recommendations under S.24 / Sch 7 Local Audit and Accountability Act 2014 could trigger Secretary of State interest and intervention, so can a S.5/5A report be seen as a signifier of a deep malaise. If publishing a S.5/5A report is local government going nuclear, the most extreme measure then it must be the last resort. You need to think through all other lesser options. At its most stark, it could be an even more serious event than the CFO’s.114 Notice (Local Governance Finance Act 1988)[ii], because it says governance is in jeopardy and the lawfulness of the authority in its business is in question. It will be covered in the public sector media and reputationally hard to extricate from.

A Tool – The Defcon MO Scale

So a s.5/5A is the ‘going nuclear of local governance. As a tool to give some context, I set out in fig 1 an analogy with the United States military state of readiness ‘Defence Condition’[iii] or ‘Defcon’ as a common abbreviation.

It works as a countdown, so Defcon 1 is most serious. For local government it is suggested we have MO’s state of readiness condition ‘Moncon’.

Fig 1 Defcon/Moncon

Conclusion

Does any of this help at all? It offers a sense of proportion and acts as a diagnosis tool as to the state of governance and action the MO should take. Views welcome and hope your authority is at ‘Moncon 5’!

Dr Paul Feild is a Principal Standards & Governance Solicitor. In 2015 he was awarded Doctor of Business Administration on the thesis which asked ‘How does Localism for Standards Work in Practice? The Practitioner’s View of Local Standards Post Localism Act 2011’. He has been a deputy Monitoring Officer in various public authorities since 2000 and researches and writes on finance and governance issues. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. His opinions as ever are his own.

^[i] Code of Practice on Good Governance for Local Authority Statutory Officers | Solace

^[ii] See Stuart Hoddinott’s article Local government section 114 (bankruptcy) notices | Institute for Government

^[iii] Pete Hegseth’s title was changed from Secretary for ‘Defence’ to ‘War’ by President Trump. So maybe Defcon will change to ‘Warcon’ too…