ACSeS (The Association of Council Secretaries and Solicitors) has welcomed the opportunity to comment on this and earlier draft Statutory Guidance and has particularly welcomed the opportunity of discussing issues informally with DETR officials.
The Association believes that the process which the Government and in particular DETR have adopted in publishing a draft Bill (before the current Bill was introduced into Parliament) and now the publication of draft Statutory Guidance and Regulations has been very helpful in the process of considering both the principles and practical implications of the proposed legislation.
The detailed comments set out below are not intended to suggest any criticism of the philosophy behind the proposed legislation, and ACSeS hopes that the Department will view these comments as a help in achieving solutions to particular problems.
1. Consultation (2.29):
Many authorities are attempting to introduce pilot schemes before legislation is enacted. It would be perfectly natural, therefore, for authorities to wish to inform the public of the results of that scheme; the Association accepts that this must be done in an even handed manner but with that proviso, the Association takes the view that the consultation process should be informed by the outcome of a pilot scheme, even though all options may be canvassed in the consultation process. It would be helpful if that option could be canvassed in the draft guidance.
2. Referendums and Petitions (chapters 3 and 4):
The Association would welcome the possibility of these chapters being deferred to the end of the Statutory Guidance, since they are technical and relate to process: the emphasis in the earlier parts of the paper are on the non-executive roles of councillors, starting with the role of the Council? As a matter of drafting, paragraph 4.28 suggests that the Secretary of State can direct a referendum simply on the grounds that a petition organiser has requested the Secretary of State to direct that a referendum take place, irrespective of the merits of the request. On what basis will the Secretary of State exercise his discretion? There should be an express tie-in with the criteria in 4.27.
3. Restrictions on Publicity (3.23 and 4.15-22):
The Government's response to the joint select committee indicated that the code of practice on publicity would be relaxed to assist councils in raising the profile of the executive and individual members of it. There is no indication here however of any intention to relax the existing code. The Association understands that SCUPRO and the LGA are considering what changes are needed to the Statutory Code and the Association will attempt to input its views through any jointly prepared statement by these organisations.
Why does the Government feel that publicity which seeks to persuade the public on the merits of one option is objectionable, if the other options are fairly described?
4. Area Committees and Overview and Scrutiny Committees (6.7, 12.8 and 12.29 and 12.33):
The Association is concerned at the serious restriction in the ability of councils to co-operate to establish joint area committees; paragraph 12.33 requires the executive to appoint members from its number. This contrasts with single-authority area committees with executive functions, where there appears to be no such restriction (12.11). While Ministers may be nervous at the scope to delegate functions to area committees, they are seen by many authorities as an improved way of building contact with local communities, particularly if linked to the community planning process. The Association believes that there should not be any practical limit on the ability of authorities in two tier areas to establish joint area committees.
5. Declarations of Interest by the Executive (7.15) and Overview and Scrutiny Committees (6.12 and 13, 6.46 and 12.19):
Supporting a fiction that members in some cases are to be treated as having pecuniary interests, is inappropriate; it is difficult to see how a pecuniary interest could arise in these cases or why an interest under the National Code of Conduct would not suffice, with existing penalties. All that is necessary is that the Guidance suggests that members should declare an interest and avoid speaking and voting where (for example) they are sitting on an Overview and Scrutiny Committee looking at a matter dealt with by an area committee in which they participate.
The draft guidance also appears to distinguish 'oral' declarations from written declarations. The essential difference, however, should be between an interest under the National Code of Conduct which is clear and substantial (requiring the member neither to speak nor to vote) and one which is not (where the member must declare it but may speak and vote, or take a decision, in the case of a cabinet member).
It is also unclear in 6.46 and 7.15 why overview and scrutiny or executive members must declare an interest to the Standards Committee; What is important, is that members declare interests there and then, at meetings in which they are participating or otherwise in the decision-making process. Declarations to, and dispensations from, the Standards Committee will be an unnecessarily cumbersome process. Dispensation under the present Code is the subject of consultation with the proper officer (the Monitoring Officer) and it is not clear why thisis insufficient in the circumstances envisaged here.
6. Scrutiny of Officer Delegated Powers: 6.15, 7.7 and 12.6):
Although the principle is accepted that all executive functions must be capable of being scrutinised, including those delegated to officers, it would be counter-productive to create a system (if that is the implication of these paragraphs) whereby officers had to prepare reports on all the decisions they had taken to facilitate the scrutiny function. It would be helpful if the draft guidance could make it clear that in practice the scrutiny function of many decisions delegated to officers could be through the review of service plans and the best value process, or through specific questions at council.
7. Disputes between the executives and others (6.18, 6.20, 14.28-34; 11.11):
The disputes mechanism as formulated here, would undermine one of the principal objectives of improving the efficiency of the decision- making process, and clarifying accountability. Overview and Scrutiny Committees must be allowed to question the merits of a decision of the executive. If however, their views on the matter are published together with the response of the executive, then it is difficult to see why the requirements of local accountability are not satisfied. If the Government insist on a process whereby disputes on the merits of a decision can be referred to the full council, then in many authorities minority parties may see opportunities to extend and repeat debates on contentious issues and exercise the call-in or review mechanisms more than is otherwise justified. The imposition of a mandatory disputes procedure of the sort envisaged in the draft guidance, will make it more likely that authorities will avoid a call-in mechanism. The public will be bemused, if in any event the final decision rests with the executive (in the case of executive matters not requiring a full council decision). A better route would be to restrict disputes to questions of jurisdiction, e.g. as to whether the executive's decision is or is not a departure from a plan approved by the full council within the policy framework, but not to extend to the merits of the particular decision.
It was helpful to learn through informal discussions with DETR officials that there is to be a limit on the number of times a particular matter can be 'called in'. Such a restriction would certainly help to reduce the opportunity for abuse; there should not, however, be an ability by overview and scrutiny committees to refer matters to full council where the council is not to make the final decision; the publication of the scrutiny Committee view and the response of the executive is enough to ensure public accountability of the executive.
The published draft guidance (11.11) implies that any disputes as to whether or not a decision of the executive is within the policies adopted by full council will be determined by the monitoring officer; but there should be scope for other mechanisms (e.g. a committee of the council outside of executive/scrutiny arrangements, perhaps chaired by the chairman of the council) for determining such matters. As drafted, the paragraph leaves it unclear who makes the final decision.
8. Scrutiny of non-executive functions (6.24)
What is the logic of allowing a call-in or review of decisions already considered by an all party committee reflecting the political strengths of the respective groups? Call-in, in such a case, is merely a duplication; it is not consistent with a scheme whereby the proposals of a single party executive are scrutinised by an all party overview and scrutiny committee. It will make the defence of appeals against quasi-judicial functions, more difficult. Is it envisaged that the work of the Standards Committee could be subject to scrutiny?
9. Member items on Overview and Scrutiny Committees Agendas (6.41):
The bald statement that a member of an overview and scrutiny committee should be allowed to have an item placed on an agenda needs to be considered further. This should be only one of several options, including
- a direct request to the executive or an individual cabinet member to respond
- a question or motion at full council.
It would be helpful if the statutory guidance emphasised the need to ensure that adding items to overview and scrutiny agendas was not the only mechanism available to members, and that care should be taken to avoid those committees being diverted from policy development work. The best option, however, would be for the final version of the Statutory Guidance to leave this to individual councils to resolve to reflect their local culture. An alternative would be to give the Chairman of the Committee the authority to make the final decision as to whether or not to include the item on the agenda.
10. Declaration of the Use of the Whip (6.47):
The logic of suggesting this is accepted but further consideration needs to be given as to how it would be enforced. Is the monitoring officer, for example, to be given powers to require papers to be produced from meetings of party groups (which, of course, are not meetings of the authority itself)? The inference from this paragraph is that declaration of the use of the whip is not to be mandatory.
11. The Deputy Leader (7.14):
Why does the department feel that there should be a requirement to appoint such a post in the cabinet/leader model (where members of the executive are not directly elected and where a new leader could be appointed by the full council, relatively easily)? Does chapter 14 in fact include a requirement to appoint a deputy leader in the leader/cabinet model? (Compare 14.6 for example.)
12. Officer Evidence to Overview and Scrutiny Committees (7.17)
The advice to councils about limits of questioning of officers, is welcome; it is particularly important to ensure that officers are not drawn into debating the merits of decisions taken against officer recommendations.
13. Mayor and Cabinet (8.7)
The ability of the Mayor to decide which members of the executive should give evidence to an overview and scrutiny committee, would compromise the ability of the committee to carry out its functions.
14. The Policy Framework (11.7 and 11.9 and page 116, Schedule 3 of the draft Functions and Responsibilities Regulations)
Many of the statutory plans listed, are very detailed and follow extensive guidance from central government. It could be a matter of great concern therefore to require every departure or variation to be submitted to full council for approval. The Guidance needs to refer to the departure being 'material' or 'significant' and to leave this as a matter to be determined subjectively ('which in the view of the monitoring officer is not a material departure or variation').
The proposed list of executive functions requiring a decision of the full council, includes the Annual Library Plan. This is produced under guidance rather than a statutory requirement (unlike the others) but, more importantly, is a service delivery strategy with, perhaps, limited cross-cutting aspects requiring consideration by the full council! It is the most surprising item in the list.
Although there is no requirement for executive functions to be split into separate portfolios, in practice this is likely to be the case; would it not be advisable therefore to include an alternative power to submit plans and strategies for each portfolio, as an alternative to proposals for each plan at present specified in the draft regulations?
In 11.9, the guidance should state that full council should be allowed to decide what additional plans or strategies should require a full council decision, and not leave it solely to the executive to determine.
15. Non-executive Functions (11.24 and the Local Authorities (Functions and Responsibilities) Regulations, pages 99 to 120))
The ability of members of the executive to sit on non-executive committees (e.g. 11.27, in respect of planning) is a welcome endorsement for the need for input by elected members beyond the boundaries of executive and non-executive functions.
The most notable omission from the section and draft regulations, are the various functions associated with rights of way. Determination of applications to establish, close or divert rights of way (including RUPPs, BOATs, footpaths and bridleways) can be extremely contentious in rural areas; more importantly, their determination is a quasi-judicial function justifying the same treatment as planning applications. Other notable omissions include emergency planning.
The proposals about the pension fund may be incorrect. At present, investment decisions and appointments to an investment panel are executive decisions, but arguably such trustee functions should be non-executive. Conversely, decisions about admitting bodies to the scheme and proposals for early retirement or redundancy are properly the remit of the executive, which will be concerned about the resource implications.
16. Accountable Decision Making (chapter 13)
It is sensible to require the proper recording of decisions of the executive, both individually and collectively. Giving this responsibility to the monitoring officer (13.15) will go some way to assuaging disquiet about the probity of decisions made in private. Given however the difficulty in defining 'decision' (13.21) there must be doubts about the wisdom of importing criminal penalties for failing to record properly and make the record publicly available. What, for example, is a 'material' effect and 'significant' expenditure? How can an instruction to an officer to review a policy (13.22) be a decision requiring a public record, before the executive has considered the results and come to a view as to whether or not it wishes to seek wider views on possible changes?
In view of the potential dangers and damage to public confidence, the Association would support a proposal that individual members should not be permitted to record their own decisions, and that systems for doing so should require the agreement of the Monitoring Officer.
It is unclear on what basis the full council could confirm a chief officer appointment, if they have not seen the candidates. It should be made clear that an appointments panel could be established.
Chairman of Democratic Services Committee, AcSeS