Examination of witnesses (Questions 293
TUESDAY 20 MARCH 2001
GELDART and KATE
293. Good morning. Can I welcome you to the
Committee, to the final day's session on the environment and local
authority governance? Could I ask you to identify yourselves for
(Mr Kendall) Mike Kendall. I am chair of the Democratic
Services Committee of the ACSS, the Association of Council Secretaries
(Kate Foley) I am Kate Foley. I am a national officer
in the local government section of Unison.
(Jean Geldart) Jean Geldart. I am chair of the Unison
Local Government Service Group.
294. Does anyone want to say anything by way
of introduction or are you happy for us to go straight to questions
on your evidence? Straight to questions?
(Mr Kendall) Thank you, yes.
Chairman: Can I emphasise to the two groups
that if you agree we do not need you to say it but, if you disagree,
please chip in quickly.
295. Mr Kendall, could you tell us what you
see as the key problems involved in local authorities being required
to publish forward plans on key decisions?
(Mr Kendall) First of all, the potential administrative
burden of identifying throughout departments of the council what
matters are likely to be decided over a forthcoming four month
period seems to me to be potentially quite significant. Secondly,
the requirement in the regulations for inclusion in a forward
plan of a list of documents already given to members of the executive
in respect of those matters which will be decided seems to me
potentially to be capable of undermining the decision making process.
Members of any political party, whoever is in control, will find
it very difficult to have disclosed a list of all the documents
that they have already received that will relate to matters coming
up for decision in a forthcoming four month period.
296. Taking the first part of your answer, which
is to plan four months ahead, somebody might say to you, "You
are running a very large operation here. Do you mean to tell me
that you do not currently have a reasonable idea what you are
going to be doing in the next four months as a local authority?"
(Mr Kendall) Certainly in terms of the key strategies
and policies, I am sure we could identify those four months in
advance without any difficulty. Indeed, my own authority which
has been running a pilot scheme for 12 months has done precisely
that by identifying a management of business programme to ensure
that all the relevant key strategies and policies are submitted
to the full meeting of the council in accordance with timetables
set by various government departments. At the highest level, there
is no difficulty. The trick and the difficulty will be in the
rather lower level decisions that come within the definition of
key decisions. In discussion with officials at DETR, those are
capable of being quite small, relatively small, decisions, such
as traffic management issues. I work for a county council. The
view expressed to me across the table by DETR officials was that
ministers would expect to see relatively minor matters like that
within the definition of a key decision because it could affect
people living or working in two or more divisions or wards of
the county and therefore they would expect it to be identified
four months in advance. That, in practical terms, could be quite
difficult. it depends where you pitch the definition of decisions.
297. As you will be aware, the government has
twice revised the chapter seven guidance. Do I take it from the
answer you have just given that you are still unhappy about the
definition of key decisions?
(Mr Kendall) I am happy and the Association has said
in its evidence that it is happy that local authorities at least
have some discretion in how to apply those definitions. Provided
it can keep that discretion, I think there is some possibility
that local government will be able to see its way through that.
If the regulations become even more prescriptive than they are
at the moment, I fear those definitions will have to be interpreted
298. Do you accept that the reasoning behind
this particular development was that some local authorities, in
turning to the new systems, were taking decisions in secret and
therefore the public was concerned and Members of the House were
concerned that the system was not as open as it had been previously?
(Mr Kendall) I have to confess to some reluctance
to accepting that principle. I know that it is probably the generally
held view. It seems to me that democracy does not require decisions
to be taken in public. It requires those taking decisions which
might be in private to be publicly accountable for them. If that
is right, I do not see that there is a difficulty in taking decisions
in private. The old committee system required a minimum of three
clear days' notice of decisions to be taken. This scheme would
require, depending on how you define key decisions, a far greater
lead in and I am not sure it is necessary or desirable.
Mr Benn: I have to say that the public in general
would think that having the chance to see the decision as it is
taken as a very important part of accountability.
299. What role is the media going to play on
these forward plans?
(Mr Kendall) I am sure the media will be delighted
to see in advance a programme of the things which members of the
executive or the executive collectively are going to discuss in
a four month period.
300. The media will equally be delighted to
try and change it.
(Mr Kendall) I suspect that is perfectly fair, yes.
301. What happens if political control changes?
Presumably you can then start with a clean sheet. If you win a
bi-election and that changes control of the council, do you have
to wait four months?
(Mr Kendall) No, you do not. There is no requirement
to wait four months before you make a decision. The requirement
is to have a minimum of three days. Nevertheless, local authorities
will want to comply with the spirit of the four month programme
if that is the government's wish and to include in there whatever
comes within the definition of key decisions. If there is a change
of power, I suspect in practice that a new executive will want
to review the four month forward plan and revise it and republish
302. They will not want to change the traffic
management decisions, will they? Given the very importance of
the capital investments that local authorities want to make, they
are rather different and do not depend on political power.
(Mr Kendall) I can think of some traffic management
schemes that will certainly change if political power changes.
303. That is why they are key decisions. In
your evidence, you were very negative about the power that scrutiny
committees can be given to refer matters to full council. Why
(Mr Kendall) The generally held view within the Association
is that that will undermine one of the principles of this legislation,
which is accountability of the executive. It seems to the Association
that the better way would have been for recommendations of scrutiny
committees to have been referred directly to the executive and
for the executive to publish its response. That is what accountability
is all about. In this system, if a scrutiny committee makes a
recommendation direct to the council, it seems to the Association
that there is a danger that the public will be very confused as
to who actually is responsible for the final decision.
304. Will not that be the council?
(Mr Kendall) No. That is entirely the point. If the
matter is referred to the full council by a scrutiny committee,
the council, if it relates to an executive function, will only
make a recommendation to the executive as to how it is to respond.
It will not be the council which makes the decision.
305. Does it not give the council a real role
in the process which would not otherwise be there if you did not
give scrutiny committees that power? That is one of the arguments
that has been made. Instead of the council simply being a rubber
stamping exercise at the end of the process, which in fairness
it tended to be under the old committee system, the council has
a real role, having listened to what scrutiny has to say, to say
to the executive, "We think you ought to do something different."
(Mr Kendall) I think it is entirely fair to say that
the full council must have a role in holding the executive to
account. I question however whether the power of the scrutiny
committee to refer a matter to the council before the executive
takes the decision is the best way to do that. In my authority,
for example, members of the executive are held to account by having
to report at each council meeting on matters which they have been
dealing with in the preceding period and to answer questions without
notice. That is quite challenging and it is widely reported and
held to be a very good examination of members of the executive.
If you have a system where scrutiny committees make recommendations
direct to council and then the council makes a recommendation
to the executive and then the executive takes a decision, I think
there will be confusion in the minds of the public as to who is
actually responsible and it will certainly do nothing for the
efficiency of the decision making process.
306. Some commentators believe that the new
structures give local authorities an opportunity to re-establish
full council as the sovereign body of the authority. You said
in your evidence that it is actually going to introduce an unnecessary
administrative burden and you said to us it would lead to a far
greater lead in time that was neither necessary nor desirable.
I assume you were referring to the powers of scrutiny committees
to put things back to full council?
(Mr Kendall) Yes.
307. Why do you believe that it is misconceived
for the full council to be re-established as the sovereign basis
of the council?
(Mr Kendall) I do accept that the council should take
decisions on the most important policy issues facing a particular
authority. What is difficult is to accept the very prescriptive
list requiring each authority to submit to its full council the
plans and strategies on the prescribed list. That may be a situation
which would not allow local authorities to decide what is most
important to them. May I give you an example? Included in the
list prescribed by central government is a requirement to submit
the annual library plan to the council. We have done that in our
pilot and members are most unimpressed. There is no political
difficulty over the annual library plan in my authority. Members
were asking me, "Why does this have to go to full council?
Why can it not be decided at a lower level commensurate with the
issues concerned?" The point which the Association is making
is that authorities should be given the discretion to decide themselves
from a list offered by ministers as to which of those decisions
should be left to the full council. I do not have any difficulty
with the principle that you are suggesting, that the council is
the full sovereign body.
308. Can I move on to member/officer relationships?
What impact do you think the introduction of these executive arrangements
is going to have on member/officer relationships?
(Mr Kendall) First of all, I think potentially it
could cause considerable tension between members of the executive
and chief officers and the chief executive, particularly, as will
be the case in many authorities, if Cabinet portfolios are organised
to mirror entirely departmental structures. If there is a one
on one relationship, in many authorities there will be a temptation
by members of the executive to run departments. I think tension
between executive members and chief officers will arise. Secondly,
a point which has been made to the sub-committee before by another
witness: the requirements of the decision making process and the
matters that have to be disclosed seem to me potentially to raise
difficulties between members of the executive who may not want
them disclosing and officers, particularly the monitoring officer.
309. Can you elaborate?
(Mr Kendall) The example I gave previously under the
access to information regulations requires forward plans to include
lists of documents submitted to members of the executive. If I
publish a plan on 1 April to say that at the end of July the executive
member for social services is going to make a decision in respect
of a residential home, on 1 April that forward plan must include
a list of documents already submitted on 1 April in respect of
that issue. There is an exclusion in respect of matters which
have been submitted in draft and there will be some pressure,
I think, from executive members to restrict the list of matters
disclosed in that document on 1 April, because they will be open
to inspection by other members of the council, particularly minority
party members. There will be a tension, I believe, between executive
members and senior officers, particularly the monitoring officer
responsible for access to information. The last point is about
support to the Cabinet. My experience is that members of the Cabinet
have been totally overwhelmed with the amount of business simply
because the culture of the officer organisation has not changed.
Officers have continued to submit reports in the same rather elaborate
form that they used to in committee structures. That needs a complete
revision of thinking. Members of the executive simply cannot handle
that amount of business. They are after all replacing most committees
which authorities previously had. Therefore, it requires a new
way of looking at business and that leads to a certain amount
of tension until that change of culture is achieved. Those are
the principal areas where there could be difficulty.
310. You mentioned the monitoring officer. How
do you see the role of the monitoring officer changing over time?
(Mr Kendall) The role of the monitoring officer in
simple terms will become far more difficult. Decisions are going
to be taken by individual Cabinet members and members of the executive.
That means tracing through what papers the members of the executive
have actually had and making sure they are included and listed
in the forward plan and that the list of background papers is
within the definition. The new access to information regulations
potentially make the monitoring officer's job considerably more
difficult. The second area is in the disputes procedure. The monitoring
officer will have to advise if proposed decisions by the executive
amount to a departure or variation from the policy framework,
from the large policies already approved by the council. In practice,
those could be extremely difficult issues and politically sensitive
311. Do you think the new structures will lead
to more or less delegation of decisions to officers?
(Mr Kendall) I am sure they will increase delegation
to officers. That is one of the ways in which members of the executive
will reduce their workload. I see in the guidance that that is
a process which is advocated by central government.
312. What is going to happen to those councillors
who are not on the executive and who would object to more delegation
being given to non-elected officers?
(Mr Kendall) The challenge for local government will
be to find a way of ensuring that members outside the executive
are aware of what issues are being considered by officers. That
will particularly affect local members and local issues.
313. You think officers' decisions that they
have made under delegation will be subject to very close scrutiny
of scrutiny committees?
(Mr Kendall) I am sure that in practice they will
not because there will be too many being taken by officers. In
practice, I think that will not be possible, but I am sure that
members outside the executive will want that to happen in some
way or will at least want a regular source of information as to
the sorts of things being decided by chief officers.
314. What happens with delegation? My experience
of councils is that lots of things are delegated to officers.
As soon as the officer has a sense that it is a politically sensitive
issue, he will consult, in the past with the leader of the council
or the chairman of the committee, and now presumably with the
Cabinet individual. Who has the responsibility? Is it the officer
to whom it has been delegated or is it back to the Cabinet member
who he has tactfully consulted about it?
(Mr Kendall) If the chief officer proceeds after consultation
with the member of the executive to take the decision, the chief
officer is responsible. If the chief officer however feels that
the issue is so politically sensitive, he or she may decline to
exercise delegated powers and ask the member of the executive
to take the decision or indeed the Cabinet itself. It depends
on the facts of the situation.
315. Turning to Unison, do you think in this
rush for Cabinet systems and removal of committees that industrial
relations are going to suffer and that human resources are now
being pushed into the background?
(Jean Geldart) Yes. Local authorities have had a formal
structure for taking on board industrial relations issues. There
is nothing prescribed in the legislation. Our fear, which is borne
out anecdotally by the sort of proposals which are currently being
consulted on around the country, is that industrial relations
is not being considered as an issue. Frequently, authorities are
not even looking, for example, to nominate a lead member in the
way that there used to be a personnel committee or a chair in
a personnel committee. They are describing staffing matters as
being the responsibility of the whole Cabinet and in practice
that means nobody's responsibility. There is not the same formal
channel that used to be available through the local joint committee
and the personnel committee for trade unions to have some sort
of formal consultation process.
316. Some local authorities have had experimental
arrangements before legislation comes in. What evidence have you
picked up from those authorities that are taking part in this
experiment and have gone down this route that industrial relations
(Jean Geldart) Funnily enough, I work for one of them.
I would not like to use the authority that I work for as being
typical, as no authority is typical. With the ones that went ahead,
some have incorporated a formal industrial relations process and
some have not. The major problem that we have encountered is that
because the process which has been working over the past two or
three years in local authorities has speeded up the decision making
process and has led to decisions in practice being taken in a
greater degree of secrecy. This has meant a failure to communicate
information to trade unions and to the workforce and to consult
trade unions and the workforce and therefore to the possibility
of industrial relations problems. That is a generalisation and
obviously there have been authorities which have been behaving
very well in this respect and others which have not. By nature,
the speeding up of the process and the fact that it enables decisions
to be pushed through very quickly can not only disadvantage the
community; it can also disadvantage the workforce as well.
317. What impact will this have on national
(Jean Geldart) That is an interesting question. I
am not sure what the connection is sometimes between individual
local authorities and national bargaining because
318. National bargaining sets benchmarks. I
was on a local authority myself. I know some of the problems.
There was a collective of personnel committee chairmen that used
(Jean Geldart) There may still be collectives if there
are lead spokespersons. I suspect that in practice what will happen
is that personnel officers will take a higher role than perhaps
they have in the past.
319. It will be purely officer led instead of
(Jean Geldart) I suspect there will be a move in that
direction if authorities do not define lead members and make this
a key area of responsibility. I appreciate your point about national
bargaining but most of the trouble that occurs in local authorities
does not revolve around national bargaining issues; it revolves
around local issues. At the moment, you have best value reviews
which may lead to cuts in workforce and changes in working patterns
to out-sourcing and so on. It is those sorts of things which tend
to lead to problems rather than the once a year national pay bargaining.
I was talking more about the local decision making process rather
than the national one.
320. Do you not think the leader of the council
would have a more important input into that than, say, the chairman
of the personnel committee?
(Kate Foley) You have the two ring binders next to
the Chairman. They do not mention these issues of relations with
the workforce. We would say that councils are disproportionately
workforce centred organisations by the nature of the services
that we deliver. Our view is it is important that there is a relationship
between elected members and officers and the industrial relations
machinery and mechanism, the joint framework. We would hope that
that issue will be taken seriously and will be built into councils'
reflections on how they are going to move to new structures and
that they will not neglect it, given that their attention has
not been specifically drawn to it by the advice they have been
offered by the DETR.
321. You referred to the particular issues arising
in relation to best value currently, affecting different areas
of council services at different times. Does that not make it
difficult to say that there is one executive member who we want
to have lead responsibility, when in fact the nitty gritty issues
that you need to discuss are with the lead member who has responsibility
for that area that is the subject of best value review. I am not
clear how those two competing arguments you have just put are
going to be reconciled within the context of the new structure.
(Jean Geldart) You are right up to a point. However,
if nobody has responsibility for industrial relations as such,
it tends to be something which is given lip service to. "Yes,
we have consulted the unions", meaning, "WE have sent
them a copy of it two days before it went to committee."
It is very difficult for the unions or representatives of the
workforce to find somebody they can raise the strategic areas
of what the consultation mechanism ought to be, for example, about
best value, because the authority should be operating the same
consultation mechanism on all best value reviews rather than doing
it on a review by review basis. That is the point we would make
in relation to that. Clearly, we would want to see an openness
in best value. There is agreement by national employers and trade
unions that trade unions should be involved in best value reviews.
A very large number of local authorities are not involved with
trade unions in best value reviews. This is symptomatic of the
problem that those authorities are not being directed towards
the fact that it is better to have the workforce on your side
than to create situations which are liable to lead to industrial
322. What is going to happen with the scrutiny
overview system both as far as officers and members of Unison?
How far are either group going to be in a position to put in submissions
of evidence to scrutiny panels?
(Kate Foley) I do not think we know how the system
is going to work out in practice yet. We have advised our branches
that they should know which overview and scrutiny committees are
being set up, have notice of their work programme, pay attention
to the issues that are coming up. In some authorities, they have
established a formal mechanism about the relationship between
the trade unions and the overview and scrutiny committees. That
is probably a desirable thing to do, to try and work those things
out in practice in advance. It seems to me that there are a number
of issues that local trade unions might very well want to make
comments on which will be matters that overview and scrutiny committees
will be looking at. It would be helpful to those committees that
the unions should make comments, either write to people or appear
and make representations. That will add to the work the committees
are meant to be undertaking and it will be helpful. As far as
officers are concerned, you have heard quite a bit already about
some of the issues of concern and those are issues that we echo
in terms of things that our members who are chief officers have
said to us. There is a two-fold concern. One is, on the one hand,
officers are, if they are in a semi-competing relationship with
an executive member who has the same portfolio as the officer
is responsible for, there is a question of whose professional
judgment is foremost in the situation. The other is that they
are being more politically exposed. They are being held to account
for decisions that they perhaps feel are the responsibility of
the Cabinet and not of officers. There are two sets of concerns
for chief officers really.
(Mr Kendall) In practical terms, the difficulty for
chief officers in particular will be that 90 per cent of their
time will be spent in supporting the executive. In the course
of that support, they will have occasion to give very sensitive
advice to members of the executive on tactics, timing or the implications
of what is being considered. The tension arises when the scrutiny
committee wants to examine the final outcome and wants to know
precisely what advice was given by the chief officers, perhaps
in a confidential session, perhaps even to the point where the
access to information regulations do not require disclosure. That
does put chief officers in a very difficult position. On the one
hand, they disclose the evidence and they might be seen by the
executive not to be giving proper support. On the other hand,
if they do not answer the question, they will be seen by the scrutiny
committee as not fulfilling their duty to all members of the council.
It is a tightrope, frankly.
Chairman: On that note, can I thank you all
for your evidence?