Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions First Report

6  CONSTITUTIONAL AND ELECTORAL ISSUES

99. The powers and purposes of elected regional assemblies are likely to evolve gradually if they are set up but it is unlikely that their constitutional and electoral arrangements will change once they are enshrined in legislation. It is, therefore, imperative that these aspects of the draft Bill are right at the outset. Part 1 of the draft Bill sets out the electoral arrangements for regional assemblies. These provisions prescribe the number and types of assembly members as well as the system to be used for their election. Those aspects of these provisions which have given rise to particular concerns amongst interested parties are considered below.

The additional member system

100. The draft Bill provides for the election of two categories of member to regional assemblies:[115]

a)  constituency members; and

b)  regional members (also known as "additional" or "top-up" members).

At regional elections, voters would be given two votes. One vote to be cast for a candidate to be the constituency member of the assembly for the voter's constituency (the constituency vote).[116] The other vote is for either a registered political party[117] or for an individual candidate to be a regional member of the assembly (the regional vote). This electoral system (the additional member system or AMS) is already used for elections to the National Assembly for Wales, the Scottish Parliament and the Greater London Assembly.

101. Your Region, Your Choice ascribes to the additional member system, the following advantages:

  it ensures that all voters have an identifiable constituency representative, and that counties and sub-regions which have a distinct identity within their region can elect at least one constituency member to represent their interests;

  but at the same time the relatively large constituencies and top-up members should avoid tensions between assembly members and MPs representing the same constituencies and encourage assemblies to take a region-wide view of their responsibilities;

  it gives voters a wider choice than most forms of PR, so that, for example, they can vote for a popular independent candidate in their constituency whilst still supporting their preferred party with their top-up vote; [and]

  it is relatively simple to understand.[118]

102. Some of our witnesses shared this enthusiasm for AMS, commenting inter alia that this system would overcome some of the perceived disadvantages with the first past the post system, used to return members to the House of Commons. Professor Hazell, for example, commented that:

A first-past-the-post system tends to exaggerate the number of seats won by the largest single party and often to give it a working majority when it has not won a majority of the vote. Therefore, if you were to advocate first-past-the-post for regional assemblies in England you would, in effect, be advocating that in some of the regions of England these would risk becoming one party states, and that is my understanding as to why [proportional representation] has been proposed.[119]

He later explained that "the first-past-the-post system was notoriously disproportionate [and that] [t]he role of the additional members is to correct for the disproportionality in the constituency seats."[120] YES for the North West also wrote that "[a] balance of constituency and regional members elected through the Additional Member System for fixed 4 year terms would bring a suitable and distinct method of representation to the electorate."[121] Yes4theNorthEast similarly supported the proposed voting system, which it commented "should allow a wider range of voices to be heard in a North East Assembly."[122]

103. When asked why the additional member system is being proposed for elected regional assemblies, the Minister told us:

The reason for going for the type of election that we have proposed … is to ensure that you do have a more proportionate representation of the interests of the region than would be possible by a first-past-the-post election, particularly in terms of regions with a very strong majority of one particular party at parliamentary level. Let us take the North East as an example. I think it is important that there should be opportunities for representation by other parties, which might be completely excluded if the election was on a first-past-the-post basis in a region like the North East ... The second factor is ensuring probably a better gender balance and better representation of the different minority interests in various areas. It is very notable that in the cases of Scotland, Wales and London the gender balance on those bodies is far better than in most local authorities and indeed in the Westminster Parliament.[123]

104. This enthusiasm for the additional member system was not, however, shared by all of our witnesses.[124] North East Says No, for example, wrote that "[t]he proportional representation system chosen for the Assembly will provide an opportunity for the BNP to be given a prominent role in the North East by being elected to public office."[125] It went on to illustrate that the composition of an assembly in the North East, based on the results of the voting in the June 2004 European elections, would be as follows:

Party	Assembly members
Labour	13
Liberal Democrat	4
Conservative	4
UKIP	2
BNP	1
Independent (Neil Herron)	1
Total	25

Source: North East Says No, Ev 189

It commented that "it is highly likely that no party would achieve an overall workable majority", which, it argued, "could lead [to] an endless series of changing coalitions, which could lead to deadlock in decision making."[126]

105. We were also referred to the experience of the AMS system in the context of Wales and Scotland.[127] The Richard Commission,[128] for example, concluded that there were a number of disadvantages to the additional member system as it had operated in Wales. The difficulties it identified included:

  it creates two types of [member] with overlapping responsibilities: the single constituency Member and the regional Member who is one of four representatives covering the region which includes the constituency; in the present Assembly all Labour [members] are constituency Members and two-thirds of opposition [members] are regional list Members;

  the freedom for candidates to stand for both constituency and party regional seats is seen as a weakness…;

  the closed party list system reduces voter choice in favour of party control. Parties choose the candidates and determine their priority order on the list;

  studies suggest that regional Members have less direct contact with constituents than do constituency Members; [and]

  there is some evidence that people do not understand the dual-voting system, particularly the relationship between the first and second vote.[129]

106. Of the difficulties summarised above, the Richard Commission expressed particular concern about the fact that "inherent in the [additional member system] is the creation of two types of Assembly Member - this is a problem that would not be solved by adjustments to AMS."[130] This difficulty was also acknowledged by Professor Hazell in oral evidence to us:

Coming to your question and the difficulties experienced in relation to AMS, there is no doubt there has been tension between the two classes of member in Scotland and in Wales which is mainly, I have to say, because of strong resentment by the Labour Party, which is overwhelmingly predominant in constituency members, against the list members who predominantly are representatives of the opposition parties.[131]

Paul Bevan of the South East England Regional Assembly, on the other hand, suggested that the distinction between constituency and regional members could present an opportunity for a different type of non-geographical constituency:

At the moment we combine constituencies of place - local government representatives with constituencies of interest, business and voluntary organisations. There is an opportunity it seems to us to experiment with the top-up list that draws from constituencies of interest specifically.[132]

107. We were keen to ascertain why AMS is being proposed as the electoral system for elected regional assemblies. We asked the Minister and ODPM officials whether there had been public demand for this electoral system and whether interested parties had been consulted on this aspect of the proposals. Both sets of witnesses stressed that there had been wide consultation.[133] The Minister, for example, explained:

I have debated this particular issue at almost all the meetings I have held over the last two years in different regions. Certainly we have listened to the views, and the views are varied. Some people are very opposed to our proposals …[134]

In his written response to the question "How many respondents to the White Paper Your Region: Your Choice: Revitalising the English Regions, had supported the Government's proposals for the members of elected regional assemblies to be elected by the additional member system?", Richard Allan commented:

Of the 1,171 individual respondents to the White Paper sixty-seven mentioned the voting system. Of these sixty-four expressed a firm view for or against AMS. Twenty-four favoured AMS. Of those forty that did not favour AMS, eighteen expressed a preference for the single transferable vote (STV), three for first past the post, two for a party list system, and twenty-three did not suggest an alternative system.[135]

108. The relatively limited number of responses on this key issue could reflect a lack of understanding of the proposed electoral system by interested parties. Professor Travers told us that, if AMS were adopted, the system would need to be explained to the electorate:

I think that the voting system, which is not, for most of us in Britain, the cross on the ballot paper with the stubby pencil, the arrival of these new systems of voting and, in the case of London, two elections for the same Authority on the same day, was not well explained. Even at the second election it is alleged that people did not fully understand the ballot paper. So I think there is an education role very importantly needed, which I do not think has ever been fully explained to the London electorate.[136]

On the Committee's visit to the US we discussed different voting systems with officials from California. They highlighted problems caused with complex voting systems, particularly if different elections used different systems. The problems for the electorate understanding how to vote caused a high level of spoilt ballot papers and in some cases acted as a deterrent to actually voting. In some areas detailed explanations had to be sent to households.

109. We are not convinced that there is wide public support for the use of the additional member system to elect members to regional assemblies. We are also concerned that the experience of AMS in Wales and other devolved bodies has shown it to have a number of significant disadvantages. These most notably include: the creation of two types of assembly member; the ability for candidates to stand as both constituency and regional members (meaning that those who fail to win a constituency seat can still win a seat as a regional member); and the fact that the electorate are unfamiliar with the electoral system.

110. When legislation is considered for elected regional assemblies, we recommend that the additional member system should not be used to return members. The Government should use the more established and straightforward first past the post system, that is used to return members to the House of Commons. At the very least the Government should remove as many of the difficulties with AMS as possible, for example by prohibiting candidates from standing for both constituency and regional seats.

PROPORTION OF CONSTITUENCY TO REGIONAL MEMBERS

111. A number of witnesses expressed particular concern about the fact that the draft Bill does not prescribe the proportion of regional to constituency members. Instead, Clause 3(4) of the draft Bill would empower the Secretary of State to specify the number of regional and constituency members in secondary legislation.

112. Although the relevant provisions are absent from the draft Bill, the Government has indicated that "the proportion of top-up seats in any region will be around 33 to 35 per cent of all seats in the assembly [which] is similar to the top-up proportion for the National Assembly for Wales, which is one-third of all seats".[137] This was reiterated in the Minister's oral evidence to us:

We have said approximately two-thirds will be elected from constituencies and one-third from the region as a whole, and we will be issuing guidance to the Boundary Committee … on framing the constituencies as to precisely how that should be achieved.[138]

113. This absence from the draft Bill is somewhat surprising, especially given that Your Region, Your Choice recognises "the proportion of top-up seats" to "constituency seats" as being a "[detail] which can make an important difference to how [AMS] works in practice".[139] The omission is justified on the basis that "Until the exact number of seats in any assembly is known … it is not possible to specify an exact percentage of top-up members for regional assemblies".[140]

114. Some of our witnesses were unconvinced by this justification. Professor Hazell, for example, commented that:

[T]he Bill leaves it to the Secretary of State …to specify the number of constituency members and the number of regional members for each assembly and I think that is a very odd power to confer upon a government Minister because in effect it could enable them to decide whether in some regions one party will win and govern or not.[141]

Derbyshire County Council described this degree of uncertainty as "unacceptable".[142] Professor Hazell suggested that the draft Bill should specify a minimum ratio of regional to constituency members, perhaps in the region of 40:60.[143]

115. If the additional member system is used to return members to elected regional assemblies, the proportion of constituency to regional members could significantly affect the political composition of the assembly and how it operates. This detail should be included in a draft Bill and not left to the discretion of the Secretary of State.

116. The Government expressed its intention that elected regional assemblies would comprise one-third regional members and two-thirds constituency members. This expression of intent is not, however, satisfactory as a Regional Assemblies Act could remain on the statute book for many years and many different Parliaments. We, therefore, recommend that the Government's current intention should be stated clearly in a draft Bill and it should require this proportion to be maintained, regardless of the size of an assembly.

THE SIZE OF ELECTED REGIONAL ASSEMBLIES

117. Clause 3(5) of the draft Bill would require an elected regional assembly to have between 25 and 35 members, with the precise number to be prescribed by the Secretary of State in secondary legislation.[144] While this is similar in size to the Greater London Assembly, it is significantly smaller than the other UK devolved bodies:

UK Devolved Body	Constituency Members	Regional Members	Total Members	Ratio: First Past the Post: Party List	Ratio Member: Population
Wales	40	20	60	67%:33%	1:48,600
Scotland	73	56	129	57%:43%	1:39,200
Northern Ireland	Elected by single transferable vote		108	n/a	1:15,700

Source: Report of the Richard Commission: "Table 12.2: size and electoral systems of devolved bodies", page 229

118. The Government has explained that it considers this to be the correct size range for elected regional assemblies, because:

  assemblies need to be focused, efficient bodies with a membership compatible with their functions;

  assemblies of 25-35 members would encourage the elected members to draw in unelected people with a different perspective or special expertise; [and]

  this size would be consistent with the Greater London Authority, which has 25 elected members in its assembly.[145]

119. A number of our witnesses considered the proposed maximum of 35 members to be unsatisfactory. Many commented that this could lead to a "democratic deficit" with constituency members representing unacceptably large constituencies:

There is a democratic deficit built into elected regional assemblies where between 25 and 35 members will represent around 135,000 people each. Elected members of county councils currently represent around 10,000 people each and English MPs represent 69,000 on average. According to these figures the democratic deficit of regional members would be nearly double that of MPs. This deficit is unacceptable.[146]

The English Regions Network also commented that "the Government's intention to legislate for an Elected Regional Assembly of between 25 and 30 members under the AMS Electoral System will disadvantage regions with large geographic areas or populations, leading to constituencies vastly greater than parliamentary ones and comparing unfavourably with the existing arrangements for local representation."[147] In oral evidence, Councillor Davis of the Campaign for the English Regions suggested that the risk of such a democratic deficit could be avoided by greater flexibility regarding the size of elected regional assemblies:

The ideal situation would be to have a permissive regime, whereby within a reasonable range there could be a regional choice. However, we are not there. We recognise the political realities. It seems to me the comparator would be, say, the Welsh or Scottish models - not as big as the Scottish model and not even necessarily as big as the Welsh model. However, as I say, the disparity is that in a region of over five million people (or eight million people in the case of the South East) with only 35 members, there are inevitably going to be difficulties about representation.[148]

120. The possible impact of this size limit on rural communities was also drawn to our attention. The South East County Leaders' Group explained that "[t]he system proposed in the draft Bill would unfairly disadvantage sparsely populated rural areas, with urban areas dominating regional political representation."[149] The Campaign for the Protection of Rural England wrote that it:

remains concerned at the relatively small number of elected members proposed for the Assemblies (clause 3) … We believe that this poses a great danger to rural constituency interests, which are likely to be over-shadowed by those of mainly urban constituencies. We propose that an elected Assembly should have a greater number of seats, while ensuring that boundaries are drawn adequately to represent rural areas, or should at least be required to draw boundaries that result in parity between rural and urban constituencies.[150]

The English Regions Network also warned that the size limit could lead to the dominance of cities in regional politics: "[i]t is important that the conurbations are not seen to prosper in relation to rural areas and that the clout of city regions does not disadvantage residents of coastal and market towns or other rural areas."[151]

121. The impact of Clause 3(5) would also depend on the size and make-up of the region in question. Councillor Thomas of the English Regions Network told us that:

The assumption that almost one size will fit all is incorrect. The regions are as different as chalk and cheese in terms of their size and geographic areas. If we are talking about representation within the region then 25-[35] is not enough for the larger regions.[152]

The Social and Environmental Partners of the South East Regional Assembly has indicated that the impact of the size restriction would be particularly significant in the South East which has eight million inhabitants.[153] The North West Regional Assembly commented similarly that:

The North West of England is a populous region of over 6.7 million people with diverse communities and geographies which we believe cannot be adequately represented by an Elected Regional Assembly of this size.[154]

Councillor David Phillips of the Campaign for the English Regions told us that he felt the proposed size restrictions to be "more appropriate to a city region like London than diverse regions across England."[155] He explained that "there are difficulties in terms of representativeness, particularly in a diverse region like ours (I am talking about diversity in terms of ethnic diversity as well) and there are also issues across England in terms of urban/rural divide."[156]

122. The NE England Green Party suggested that "effective representation of the region might be achieved by an Assembly of 60 Members", commenting that this "is still a significant reduction on the existing voluntary regional chamber."[157] The English Regions Network told us that "A higher number certainly, 50 maybe, would allow you then to factor into the structure much more representativeness in terms of urban issues and rural issues".[158] Rotherham Metropolitan Borough Council made the interesting suggestion of linking the number of elected regional assembly seats to the population of the region:

Perhaps consideration should be given to the introduction of a broad population/elector to councillor ratio. This would then ensure consistency of representation across all Regions. Again, here the key message is one of regional flexibility.[159]

This was echoed by North West Environment Link which also suggested that "the regional list [should be] split from being one list for the whole assembly-region to 5-10 regional lists, as in Wales".[160]

123. Not all of our witnesses, however, were opposed to the suggested size limit for elected regional assemblies. Ms Gordon of the Electoral Commission, for example, advised us that "one has to view [the size of assemblies] in the context of what the regional assembly members would do."[161] When asked what he considered would be an appropriate size for an elected regional assembly, Mr Sandford of the Constitution Unit, University College London, made a similar point, explaining that:

There are two ways of looking at this. First of all there is the question of representation. If you look at regional assembly membership from the point of view of representing the electorate, I would argue quite strongly that 25 to 35 members is not enough … On the other hand, it is quite hard to see what kind of constituency role elected regional assemblies are going to have … The more likely answer to the question is that the membership of the assembly should be related to the functions of the assembly which, as we have been saying, are very small and on those grounds there are probably better arguments for going for a smaller figure, something in the region of probably 25 or 35, perhaps a little higher, 40 or 45.[162]

124. Even if viewed from the perspective of the functions of elected regional assemblies, Mr Sandford explained that 25 to 35 members would be inadequate. If seven members were to form the executive, that would leave only 18 to 28 backbench members to perform committee work and scrutiny, "either scrutinising the functional bodies of the assembly, scrutinising the Cabinet Ministers or whatever they may be called, and carrying out work such as orders and standards."[163] Mr Sandford told us that he is "not convinced that 18 to 28 members is enough to do all those things."[164] Professor Hazell supported this view, explaining that:

the size of the assembly must relate to its functions and the way that it does its business and to the number of committees and sub-committees which the assembly will be required under the Bill to establish. It is worth noting that in Wales one of the main arguments for increasing the size of the assembly from the present 60 is because the assembly members are seriously over-stretched in each having to serve on typically three, sometimes four, committees and they are not being able to do justice to all those different committees.[165]

125. When we asked the Minister why he considers a maximum of 35 elected regional assembly members to be reasonable, he told us:

if you keep the assembly small, it is much less likely to start looking for extra work to undertake and start trampling on local authorities … If you duplicate the kind of level of representation that you have either for local councils or for Members of Parliament, you will have a large assembly; there will inevitably be tension between the different tiers of government because people elected for the same size of constituency will be pursuing the same interests possibly from a different perspective, possibly in conflict with each other; and you will have real problems of dual mandates with both people being able to say they represent exactly the same constituency and they have got a right to speak on the subject … I think it is entirely consistent with the principles on which this whole project is based that elected regional assemblies should focus on the regional matters, that they should not interfere with the work of local authorities and should not be double guessing the work of Members of Parliament.[166]

Mr Donnelly of Yes4theNorthEast supported the Government's proposal to create small, streamlined elected regional assemblies for another reason:

Chairman, from a business perspective we actually like the idea that the assembly is relatively small. One of the key things in the North East of England when we have talked to people in the region is that they ask us, "Will it mean lots more politicians?" Of course, one of the good things about this legislation is that it will actually scrap a tier of local government, so it will mean less politicians.[167]

126. We recognise the Government's wish to ensure that elected regional assemblies were streamlined, strategic bodies, with a size appropriate to the functions they would perform. We would not want elected regional assemblies to become large and cumbersome and agree that a significant advantage of a relatively small assembly would be greater use of unelected stakeholders.

127. We are, however, concerned that a maximum of 35 elected regional assembly members could lead to a democratic deficit in some regions, with just over 20 constituency members struggling to represent constituencies significantly larger than parliamentary ones. In particular, this proposed size limit could disadvantage rural areas in favour of urban ones and would disproportionately affect regions with larger populations. We are also worried that an assembly within the size-range currently proposed might struggle to perform its proposed functions, especially in the context of scrutiny.

128. Rejecting the additional member system and regional seats, in favour of the first past the post system would make room for more constituency members and accordingly go some way to addressing the risk of democratic deficits. Regardless of its decision with respect to the appropriate electoral system, any new Bill setting up elected regional assemblies should allow for the number of constituency members to be linked to the size of the region's population. A maximum number of members should be imposed, perhaps in the region of 45 to 50.

The executive

129. Your Region, Your Choice explained the Government's belief that:

there should be a split between the executive and scrutiny functions within an elected assembly. Such a split is straightforward for people to understand and promotes accountability. It characterises the Westminster and Scottish Parliaments, the Greater London Authority, and modernised structures for local authorities.[168]

Clause 32 of the draft Bill would require an elected regional assembly to have an executive of between three and seven members, and the Policy Statement explains that the executive would "be responsible for carrying out most of an assembly's functions." [169] The leader of the executive would be chosen by the assembly as a whole and the other executive members would be selected by the leader.[170]

130. We received some evidence which questioned whether a cabinet structure is appropriate in the context of elected regional assemblies. The North East England Green Party wrote that:

We are puzzled by the insistence that elected Assemblies adopt a Cabinet plus Leader structure. The political modernisation agenda for local government identifies the need for such arrangements largely to produce rapid, efficient decision-making in local authorities that are primarily concerned with service delivery. We believe that a body concerned largely with strategy and policy development will work more effectively on a committee structure, as Parliament does.[171]

Councillor Sandy Bruce-Lockhart of the Local Government Association supported this. When asked whether the cabinet system would be appropriate for assemblies, he told us:

cabinets make executive decisions and regional assemblies, unlike those in Scotland and Wales, will not have executive decisions to make, they will have plans to submit to the Secretary of State. So the answer is probably not.[172]

131. The majority of stakeholders, however, seemed to agree that this basic structure was appropriate. Mark Sandford, for example, told us:

I am quite a fan of the Cabinet system both in local government and in this particular case because I think that in small strategic bodies like these which are not going to have much to do it is going to be of benefit to have the decision-making apparatus concentrated in a small number of reasonably visible individuals who will be held to account by the rest of the assembly members.[173]

Executive, scrutiny - a separation at staff level

132. The draft Bill does not propose a formal separation between the staff working for the executive and those working for review and monitoring committees. Despite this, the Government has acknowledged that in practice such a separation is desirable. As Your Region, Your Choice explains:

[A]ssemblies will need to avoid potential conflicts of interest for officers and make practical arrangements to separate staff servicing the full assembly and scrutiny committees from those working directly to the executive. For instance, it would not be desirable or practical if staff working for the executive in drawing up and implementing a strategy were also advising the relevant scrutiny committee when it was investigating the executive's development or management of the strategy.[174]

Clause 125 of the draft Bill would require assemblies to make practical arrangements for the practical separation of assembly employees who work for the executive, and assembly employees who work for the assembly.[175] The Secretary of State would be required to issue guidance relating to this.[176]

133. We were told that such a division has developed over time in the context of the Welsh Assembly:

Certainly from very early in the life of the Welsh Assembly, if not from the very beginning, there has been quite a sharp physical separation between the two sides, although that separation was [not] reflected in the legislation. When the Welsh Assembly started out a lot of the people clerking the assembly committees for instance had previously worked with and been colleagues of the people who were staffing the government departments in Wales. So it was not uncommon for committee clerks to ring up their opposite number in government departments and ask for details of fact or advice. As I understand it that has become progressively less common as the assembly has grown up.[177]

Professor Travers told us that "the legislation should make it clear that the Executive on any Regional Assemblies and the scrutiny function have reasonable independence of each other in the way that these Committees employ officers of Parliament not of the government to oversee the Executive at national government level."[178] He described independence between these two processes as "essential".[179]

134. We agree with the Government's proposal to establish a cabinet structure for elected regional assemblies. This would provide a prominent focal point within regional government and facilitate more efficient decision-making. If the proposed division between the executive and scrutiny committees is to be maintained the effective separation of the staff of the executive and that of review and monitoring committees would, however, be vital. We recommend that the Government should reflect on the experiences of other devolved bodies in this regard when producing the statutory guidance on the operation of the cabinet structures.

THE SIZE OF THE EXECUTIVE

135. The proposal that elected regional assemblies should have an executive was relatively uncontentious. A number of stakeholders did, however, question the proposal to limit the size of the executive to between three and seven members.[180] The Minister described this not as a restriction, but rather as the most suitable compromise between ensuring a degree of consistency across regions; and giving "the assembly the opportunity to decide what arrangement it thinks is most suitable for its region".[181]

136. The South East County Leaders' Group thought that "allowing responsibility to fall on such a small group of individuals would prevent the creation of an accountable and transparent democratic decision-making process."[182] The North West Environment Link wrote that:

[T]he size of the Executive is inappropriately small … essentially a mistake has been made in taking the model from local government: in local government the Executive is small in order to facilitate decision-making. The assembly is not a decision-making body, but a review and scrutiny body, and as such automatically needs a wide and inclusive membership.[183]

The Social and Environmental Partners of the South East Regional Assembly also considered that the proposed size of the executive would concentrate too much power in the hands of too few people:

The use of a small executive comprising possibly two members and a chairman would decrease the ability of the people in the region to be involved, or properly represented. If an executive of six members is quorate with 25% attendance, major policy decisions of a region such as the South East, with a population of eight million, will be decided by just two Elected Regional Assembly members … The SEPs are concerned at this narrowing of the base of representation for decision making.[184]

Professor Hazell told us that he was "surprised to see the figure of three as a minimum", explaining that he "would want … about six."[185]

137. Not all interested parties considered the proposed size range for an elected regional assembly's executive to be inappropriate. Yes for the North West, for example, wrote that:

The proposed arrangements, for Quorum, Chairmanship, an Executive of up to 7 members including the Leader, and review and scrutiny committees, satisfactorily address concerns that the Assembly is 'fit for purpose' and able to effectively discharge its function as a slimline, strategic, decision-making body.[186]

Mark Sandford also supported the proposals for a streamlined cabinet structure for elected regional assemblies.[187]

138. We agree with the Government's proposals to give elected regional assemblies a significant degree of flexibility regarding the size of its executive.

EXECUTIVE POWERS

139. Clause 33(1) of the draft Bill provides that "The functions of the assembly must be discharged by the executive on behalf of the assembly". Clause 33(3) proposes to restrict these broad powers. It lists a number of functions which may not be discharged by the executive but which would instead require the approval of the full elected assembly, including:

a)  Electing the leader and chair of the assembly;

b)  Most financial matters; and

c)  The designation of employees as senior officers (i.e. chief executive officer, chief finance officer and monitoring officer).

The draft Bill proposed to enable assemblies to determine a limited number of additional actions which could not be discharged by the executive.[188] It also proposed that the Secretary of State would be given extensive powers to provide for further functions which are and are not exercisable by the executive.[189]

140. A number of interested parties questioned the extent of the powers that would be exercisable by an executive on behalf of an assembly. The Local Government Information Unit wrote that "[t]he division of responsibility between executive and assembly is too rigidly defined, and the role of the assembly too narrow."[190]

141. ONE NorthEast expressed concern about the impact which these executive powers could have on the relationship between elected regional assemblies and their functional bodies:

There is a strong rationale for introducing further items within 33.3 [those matters which must be agreed by the entire assembly], maintaining arm's length relationships between an Elected Regional Assembly and RDA, by restricting powers which can be delegated to the executive. These sub-clauses should cover the following areas as a minimum:

  The power to approve the RDA business plan;

  The power to approve the appointment of new board members; and

  The power to force amendments to the Regional Economic Strategy under Clause 7AA subsections (3)-(7) of the 1998 Regional Development Agencies Act.[191]

It argues that "clause 33 of the draft Bill creates an opportunity for delegating operational responsibility for relationships with the RDA to the executive", which, it stated "exposes the RDAs to unhelpful short term political pressures."[192] Mr Sandford also warned that the executive might "interfere politically with the decision-making of the RDAs".[193]

142. Mr Clarke of ONE NorthEast later clarified that, although a smaller group of experienced elected regional assembly members should scrutinise such key documents in detail, he would expect the entire assembly to be responsible for agreeing them:

it may be all of them sitting together in one place will have to discuss and approve the strategic document; but I think for it to be more meaningful a smaller number of members with particular levels of expertise and experience will want to get involved in a bit more detail, debate and discussion. That is what we had in mind. You are right, with the overall assembly sitting you would expect to agree things like the Regional Vision, which is a new document, the regional economic strategy, transport, spatial strategy and so on. All I am saying is that they are big, weighty complex strategies and it is not always the best way to have the whole of the group sitting to take themselves through those particular strategies.[194]

143. We are concerned about the scope of the proposed powers which could be exercised by an executive on behalf of an elected regional assembly. We would expect the entire assembly to be involved in agreeing key strategy documents such as the assembly scheme and the assembly report. We would also recommend that the entire assembly should make key decisions relating to functional bodies, such as agreeing amendments to the regional economic strategy. This would reduce the likelihood of regional government interfering in the day-to-day running of its functional bodies and maintain an arm's-length relationship.

Scrutiny

144. The Policy Statement explained that "[t]he executive would be monitored, scrutinised and held to account by the 'backbench' members, largely through the review and monitoring committees".[195] Part 5 of the draft Bill provided for the establishment of these committees (also referred to as RMCs). The main review and monitoring committee would comprise all the members of the elected regional assembly, other than members of the executive.[196] Non-elected individuals could also be co-opted as RMC members.[197]

145. Clause 74 of the draft Bill describes the functions of review and monitoring committees as, examining:

a)  any matter relating to the discharge of a function by, inter alia, the executive, a special adviser, a functional body and an employee of the assembly or of a functional body; and

b)  any other matter which the RMC thinks it is appropriate to examine, if the matter relates to the general purposes and functions of the assembly.[198]

146. The main review and monitoring committee would be able to establish Sub-committees, required to comprise at least three assembly members as well as co-opted members.[199] The draft Bill does not prescribe the number or role of RMC sub-committees but does envisage the establishment of sub-committees for specific geographical areas within the assembly's region.[200]

AN EFFECTIVE SCRUTINY STRUCTURE

147. Your Region, Your Choice explained the Government's wish not "to be prescriptive about the number of [RMC sub-]committees and their precise functions"[201] and, as described above, has accordingly left a large degree of discretion to assemblies to decide on the most suitable scrutiny arrangements. This flexibility has been supported in some of the evidence we have received:

It seems to me that there is no advantage in specifying in great detail how the scrutiny system should work. The system that they have specified is actually used by some local authorities. The entire non-executive membership of certain local authorities become the giant scrutiny committees, sometimes there are 50 members and it has commissioned work from sub-committees, but that is a choice that local authorities have made. Other local authorities have chosen to set up systems which look far more like that used in the House of Commons or in the Welsh Assembly, subject committees in effect handling different parts of the council's business. I do not think it is possible to say that one system works better than the other. There is no clear definition of exactly how the scrutiny should work. Under those circumstances I think flexibility is the key.[202]

148. A number of witnesses have, on the other hand, argued that the draft Bill should have been more prescriptive as to scrutiny system for elected regional assemblies. ONE NorthEast, for example, commented that:

Scrutiny works most effectively when it is based on transparency and informed dialogue rather than bipartisan and adversarial inquisition. Everyone would benefit from a more formal and evidence based scrutiny process, with long serving, well informed members serviced by expert advisers and experienced officers. We would therefore recommend that the bill include statutory provision for a Standing Economic Development review and monitoring sub committee within elected regional assemblies.[203]

Burnley Borough Council suggested that there should be four RMCs: "one for each of these three general purposes, and a fourth one charged with monitoring and scrutinising cross-cutting (including sustainability) and leadership issues."[204]

149. Professor Hazell also explained that an understanding of the likely committee structure might be needed in order to determine the number of members an assembly would need:

It is difficult to work out from the Bill how many committees a regional assembly will have or want to have, but it is quite an important guess to try and make in order to work out how many members the assembly then should have to staff an appropriate number of committees.[205]

He told us that "in Wales one of the main arguments for increasing the size of the assembly from the present 60 is because the assembly members are seriously over-stretched in each having to serve on typically three, sometimes four, committees and they are not being able to do justice to all of those different committees."[206]

150. We agree that any legislation setting up elected regional assemblies should not impose a pre-determined scrutiny structure on elected regional assemblies. Assemblies should be able to determine for themselves what committee structure would most effectively hold the executive to account. Elected regional assemblies would, however, be able to draw upon the wealth of experience of scrutiny within Parliament, the devolved bodies and local government.

151. The main Review and Monitoring Committee of an elected regional assembly could consist of as many as 32 elected members, as well as co-opted members. Our experience of the select committee structure within the House of Commons would suggest that a committee this large might struggle to operate effectively. We would expect the main job of scrutiny to be performed instead by smaller sub-committees, which would be able to develop expertise in specific policy or geographic areas. An assembly could, for example, establish three sub-committees, one for each of the three purposes of elected regional assemblies. This would enable backbench members and other stakeholders to ensure that the executive is not neglecting any one of the assembly's purposes.

152. The proposed limits on the size of elected regional assemblies would have placed significant pressure on backbench members. If an assembly had adopted a sub-committee structure, it is likely that individual members would be required to sit on several committees. This would have made it difficult for members to do justice to their scrutiny role. Increasing the number of elected regional assembly members, as we have recommended, could, therefore, have a knock-on effect on the quality of the scrutiny performed.

THE POLITICAL COMPOSITION OF REVIEW AND MONITORING COMMITTEES

153. Your Region, Your Choice states that "[t]here would also be a requirement that the party composition of [review and monitoring] committees would have to reflect the composition of the assembly itself."[207] On the basis of the draft Bill, this would not, however, be possible. Clause 74 would prevent members of the executive from being members of review and monitoring committees, in the words of the Minister, "for the obvious reason that they are scrutinising the work of the cabinet".[208] The impact which this restriction could have on the political composition of the review and monitoring committee is illustrated in the Explanatory Notes to the draft Bill:

For example, in an assembly of 25 members, where 15 are Labour members, 5 are Conservative members and 5 are Liberal Democrat members, the political balance is 3:1:1. If 5 of the Labour members form the executive a RMC that consisted of all the 'backbenchers' would have 10 Labour members together with the 5 members from each of the other parties represented, and the political balance is 2:1:1.[209]

A number of factors could, however, make the difference between the political composition of scrutiny committees and of the assemblies as a whole far more extreme than in the above example:

Assume an assembly has 30 members, 15 Labour, 12 Conservative and 3 Liberal Democrat, the political balance is 5:4:1. If 7 of the Labour members formed the executive, an RMC consisting of all the backbench members would have 8 Labour members, 12 Conservative members and 3 Liberal Democrat Members. The executive would be controlled by Labour and the RMC by the Opposition.

154. The draft Bill would also require the political composition of review and monitoring sub-committees to match that of the main review and monitoring committee.[210] Mark Sandford described this aspect of the draft Bill as "extremely odd", telling us that he is "somewhat confused as to why this proposal has appeared on the face of the Bill":[211]

What the Bill proposes is that a single Review and Monitoring Committee will be set up which will consist of all of the members of the assembly minus the executive. The Review and Monitoring Committee will then be empowered to set up sub-committees which presumably will undertake the bread and butter work of the scrutiny of either the functional bodies or of the Cabinet members themselves. What is odd is that the sub-committees of the Review and Monitoring Committee will mirror the proportionality of the Review and Monitoring Committee rather than the assembly as a whole and that goes against practice in every other tier of Government. As you know, here the proportionality of your own Committee mirrors that of Parliament. It does not take members of the Government off and then mirror the proportionality of those who remain.[212]

155. A number of interested parties expressed similar surprise at this aspect of the draft Bill. The NE England Green Party wrote that it "will lead to a confusion of the roles of scrutiny and opposition, and will militate against consensual working." [213] It also pointed out that the Centre for Public Scrutiny "holds the view that scrutiny is most effective as a non-party political activity."[214] The Local Government Information Unit made a number of further arguments against these proposals, including:

  It is not in line with the general practice of the British constitution, which is that the executive should be drawn from the legislature/assembly, but nevertheless the political balance of scrutiny bodies should reflect the electoral mandate of the entire elected body …

  If scrutiny bodies are seen as representing the opposition, not the overall electoral mandate, this will not encourage the executive to see their role in a positive light, and will make it harder for the Review and Monitoring Committee to have a positive role in policy development, vital for a strategic body.

  It could also encourage the major party to have as small an executive as possible, as this affects the political balance of the review and monitoring committee. This would not be helpful, as research on new constitutions in local government indicates that the executive role can be a very heavy one.[215]

Mark Sandford told us that "the likely outcome … is a party politicisation of the scrutiny process, a temptation to use scrutiny committees for oppositional purposes. Based on the work that we have done on scrutiny over the past two years, it seems to us that that is the least effective way of running a scrutiny system." [216] YES for the North West commented that "the non-executive scrutiny body must reflect the democratically-elected regional political balance"[217] and Councillor Davis of the Campaign for the English Regions told us:

Certainly the situation where the scrutiny system will be run by the opposition party and the controlling coalition, or whatever, will be running the executive, by default, is not a healthy position. That needs to be addressed. There may be some unintended consequences if the Bill goes forward with that technical provision as it is.[218]

156. When we put these concerns to the Minister, he told us:

I know there is an issue about the provision that the scrutiny committee and any sub-committees have to be proportionate to the electoral composition of the RMC ... The thinking behind this is that if an RMC were to be required to set up its sub-committees with the membership in proportion to the whole assembly including the executive, as against its own committee, which is purely based on the non-executive members of the executive, then they might not set up any sub-committees because they would see that as, in a sense, watering down their effectiveness. Because there is a requirement that the RMC itself should be made up of members who are not on the executive, for the obvious reason that they are scrutinising the work of the cabinet, then the logic seemed to point to having any sub-committees of that body of similar proportion. [219]

He went on to deny the likelihood that this could lead to a situation in which the review and monitoring committees are dominated by the opposition party:

I have heard the arguments advanced. I have looked at the figures. If you think about it, it is unlikely, given the range of numbers that we have talked about with the maximum of seven, that actually the political composition would be so skewed that the assembly would not work effectively as a result of the requirement that the RMC and its sub-committees should be made up solely of members who are not on the executive.[220]

157. While, as discussed above, Mark Sandford was concerned about this aspect of the draft Bill, he told us that "[f]rom an academic point of view it is an interesting idea which is worth trying at some point".[221] Nevertheless he told us that:

We are somewhat confused as to why this proposal has appeared on the face of the Bill when there is no real way of knowing how well it would work in practice … enforcing it on the face of this Bill seems to us to have been done for no visibly good reason.[222]

158. The membership of scrutiny committees in Parliament, the devolved bodies and local government, reflect the political composition of the entire elected membership. This approach works well and prevents scrutiny of the executive becoming a tool of the opposition. This, in turn, improves the quality of the scrutiny undertaken and ensures that committee work is taken more seriously by the executive.

159. Despite the advantages of the approach taken elsewhere in the British constitution, the draft Bill proposed that the political composition of review and monitoring committees should reflect the composition of the backbench membership, i.e. excluding the executive, rather than that of the entire elected regional assembly. This would create the risk that these committees could be controlled by the opposition which would be detrimental to both the quality and perception of the vital scrutiny role of review and monitoring committees.

THE POWERS OF REVIEW AND MONITORING COMMITTEES

160. The draft Bill proposes to give review and monitoring committees the power to examine the discharge of a function by any of the following:

a)  the executive or a committee, sub-committee or member of the executive;

b)  a special adviser;

c)  a functional body of an assembly (including the Regional Development Agency, the Regional Fire and Rescue Authority and Regional Cultural Consortium);

d)  an employee of the assembly; [and]

e)  an employee of a functional body. [223]

161. When pursuing its scrutiny functions, Clause 77 of the draft Bill would provide RMCs with the following powers to compel evidence:

(1) For the purpose of the discharge of the RMC's function under section 74(2), the RMC or any RMC sub-committee of an assembly may require an individual falling within subsection (2)-

(a) to attend proceedings of the RMC or RMC sub-committee;

(b) to answer questions put to him by members of the RMC or RMC sub-committee in the course of those proceedings;

(c) to produce to the RMC or RMC sub-committee any document in his possession or under his control.

The people to whom these powers apply are, however, limited to members and staff of an assembly and its functional bodies.[224]

162. A number of witnesses told us that they consider the RMC powers currently proposed in the draft Bill to be insufficient. In particular, we were told that the list of persons subject to these powers should be expanded. The Local Government Information Unit, for example, wrote:

We would like the Bill to set out clearer powers of scrutiny, including rights to call staff and information, in relation to external bodies, and quangos. Local government scrutiny committees have powers to investigate and report on 'matters which affect the authority's area of the inhabitants of the area'. This power should be given to regional assembly scrutiny bodies as well.[225]

In our previous report, Reducing Regional Disparities in Prosperity, we recommended that elected regional assemblies should be given the power to scrutinise the Government Offices in the Regions:

Where elected regional assemblies are introduced, arrangements should be put in place to allow some form of scrutiny of the Government Office by the assembly, as has been the case with Regional Development Agencies, which are scrutinised by unelected regional chambers, whilst retaining accountability to Parliament through DTI Ministers.[226]

Forum for the Future also stressed the need for government offices to become accountable to elected regional assemblies:

There is little discussion within the bill about the relationship with regional Government Offices. These have the potential to become a 'mini regional Whitehall' supporting and accountable to the Assembly. Otherwise they will continue to be a powerful, but unaccountable public organisation within the region.[227]

163. In response to this recommendation, ODPM wrote that "[t]he Government Offices (GOs) … are part of central government and thus accountable to Parliament" and that "[e]lected regional assemblies will not have a remit to scrutinise GOs, which will continue to be accountable to Ministers."[228] This view was reiterated when we asked ODPM officials about the limited powers:

Clause 77 of the Bill allows RMCs and RMC sub-committees to compel evidence, but that is from people associated with the assembly (the employees, the members, the leader), not people from outside bodies. The RMC is mainly about looking at the work of the assembly and how that fits in with the rest of the region, not for scrutinising other outside bodies.[229]

They also suggested that the power to compel the provision of evidence from outside bodies is unnecessary because such bodies would be likely to cooperate with RMCs on a voluntary basis.[230]

164. The powers that the review and monitoring committees would have are inadequate and inconsistent with the arguments made by the Government in favour of elected regional assemblies. If their powers are not extended, review and monitoring committees would be unable to hold to account unelected quangos operating within the region, even if they have received funding from the assembly. They may also be unable to investigate whether a coordinated and effective approach to sustainable development is being taken within the region. Review and monitoring committees should not be expected to rely on the voluntary cooperation of those outside bodies which are key to delivery of the assembly's underlying purposes. The power to compel witnesses to attend and to provide evidence, though rarely used, would give an important impetus for key stakeholders to cooperate in the process of scrutiny.

THE LIKELY PROFILE OF BACKBENCH MEMBERS

165. The effectiveness of elected regional assemblies would depend to a large extent upon the quality of its elected membership. Your Region, Your Choice explains that:

The Government believes that members of an assembly executive and the chair of an assembly will have full-time posts and should be paid accordingly. Other members of a regional assembly will also have an important role, which is likely to require them to work for perhaps three days a week on assembly business. In order to recompense them for this work, and to attract good quality people who may otherwise be unable or unwilling to stand for election, we propose that these assembly members should receive a salary of around two-thirds of that for the executive members and assembly chair.[231]

The Policy Statement does not explain whether the Government still expects that backbench members would be part-time.

166. Some of our witnesses commented on the possible impact of part-time membership on the profile of backbench members. Mark Sandford, for example, told us:

My guess is that the fact that the backbench members will be part-time will be an encouragement to dual mandate holders, people who are already MPs or perhaps county or unitary authority councillors, to take on those roles as well … I think the part-time nature of the membership is going to make it very difficult not only to develop a profile of the members but actually to do the job … I am quite curious as to why the Government has made so much of the part-time nature of assemblies.[232]

The Local Government Information Unit also wrote that full-time salaries for all elected regional assembly members is "essential if candidates are to reflect the whole population, including young people, those with young children, and people at an age when they need to establish a career."[233]

167. It would be unfortunate if backbench members were paid only a part-time salary as this could lead to review and monitoring committees being dominated by dual-mandate holders, the retired and the unemployed. While such groups should be represented, other groups which are more likely to need a full-time salary, such as younger people and those with families, should not be dissuaded from standing for election. In addition, we are concerned that part-time backbench members could struggle to perform their role effectively. Non-executive members may, for example, be required to sit on more than one review and monitoring committee. If they are to do justice to their committee work, the three days per week suggested by the Government would be insufficient.

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115   Clause 3(1) Back

116   Clause 6 Back

117   Registered political parties would be able to submit a list of candidates to be regional members. Back

118   Your Region, Your Choice, paragraph 6.12 Back

119   Q 23 (Professor Hazell) Back

120   Q 45 (Professor Hazell) Back

121   Ev 75 Back

122   Ev 32 Back

123   Q 470 (The Minister) Back

124   See, for example, Ev 131 (South East County Leaders' Group)  Back

125   Ev 189 Back

126   Ibid. Back

127   Q 21 (Professor Hazell)  Back

128   The Commission on the Powers and Electoral Arrangements of the National Assembly for Wales Back

129   Report of the Richard Commission, National Assembly for Wales, Spring 2004, Chapter 12, paragraph 18 Back

130   Ibid., Chapter 12, Findings Back

131   Q 21 (Professor Hazell) Back

132   Q 339 (Mr Bevan) Back

133   Qq 284-289 (Mr Allan) & Qq 471-472 (The Minister) Back

134   Q 472 (The Minister) Back

135   [Letter dated 28 September 2004 from Richard Allen including written responses to questions raised in oral evidence sessions] Back

136   Q 66 (Professor Travers) Back

137   Your Region, Your Choice, paragraph 6.13 Back

138   Q 473 (The Minister) Back

139   Your Region, Your Choice, paragraph 6.13 Back

140   Ibid. Back

141   Q 45 (Professor Hazell) Back

142   Ev 87 Back

143   Q 46 (Professor Hazell) Back

144   Clause 3(4) Back

145   Your Region, Your Choice, paragraph 77 Back

146   Ev 87 (Derbyshire County Council) Back

147   Ev 163 Back

148   Q 516 (Councillor Davis) Back

149   Ev 131 Back

150   Ev 59 Back

151   Ev 163 Back

152   Q 337 (Councillor Thomas) Back

153   Ev 57 Back

154   Ev 125 Back

155   Q 490 (Councillor Davis) Back

156   Ibid. Back

157   EV 51 Back

158   Q 490 (Councillor Davis) Back

159   Ev 197 Back

160   Ev 196  Back

161   Q 107 (Ms Gordon) Back

162   Q 15 (Mr Sandford) Back

163   Ibid. Back

164   Ibid. Back

165   Q 19 (Professor Hazell) Back

166   Q 467 (The Minister) Back

167   Q 490 (Mr Donnelly) Back

168   Your Region, Your Choice, paragraph 7.2 Back

169   Policy Statement, page 12 Back

170   Clause 32 Back

171   Ev 51 Back

172   Q 138 (Sir Sandy Bruce-Lockhart) Back

173   Q 26 (Mr Sandford) Back

174   Your Region, Your Choice, paragraph 7.27 Back

175   Clause 125(1) Back

176   Clause 125(2) Back

177   Q 30 (Mr Sandford) Back

178   Q 68 (Professor Travers) Back

179   Ibid. Back

180   Clause 32(3) Back

181   Qq 474&475 (the Minister) Back

182   Ev 131 Back

183   Ev 195-196 Back

184   Ev 56 Back

185   Q 26 (Professor Hazell) Back

186   Ev 76 Back

187   Q 26 (Mr Sandford) Back

188   Clause 33(4) Back

189   Clause 33(6) Back

190   Ev 49 Back

191   Ev 173 Back

192   Ibid. Back

193   Q 26 (Mr Sandford) Back

194   Q 366 (Mr Clarke) Back

195   Policy Statement, paragraph 27. See also Clause 73 Back

196   Clause 74(1)(a) Back

197   Clause 74(1)(b) Back

198   Clause 74(2)&(3) Back

199   Clause 75 Back

200   Clause 76 Back

201   Your Region, Your Choice, paragraph 7.5 Back

202   Q 34 (Mr Sandford) Back

203   Ev 174 Back

204   Ev 62 Back

205   Q 19 (Professor Hazell) Back

206   Ibid. Back

207   Your Region, Your Choice, paragraph 7.6 Back

208   Q 476 (The Minister) Back

209   Explanatory Notes, paragraph 250 Back

210   Clause 75(4)&(5) Back

211   Q 30 (Mr Sandford) Back

212   Ibid. Back

213   Ev 51 Back

214   Ibid. Back

215   Ev 49 Back

216   Q 30 (Mr Sandford) Back

217   Ev 76 Back

218   Q 517 (Councillor Davis) Back

219   Q 476 (The Minister) Back

220   Ibid. Back

221   Q 30 (Mr Sandford) Back

222   Ibid. Back

223   Clause 74(3). Back

224   Clause 77(2) Back

225   Ev 49 Back

226   Reducing Regional Disparities in Prosperity, July 2003, HC 492-I, paragraph 170 Back

227   Forum for the Future, Ev 194 Back

228   Government Response to ODPM Select Committee Report on Reducing Regional Disparities In Prosperity, September 2003, Cm5958, paragraph 57 Back

229   Q 309 (Mr Scotter) Back

230   Q 310 Back

231   Your Region, Your Choice, paragraph 7.24 Back

232   Qq 17&18 (Mark Sandford( Back

233   Ev 49 Back

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Prepared 5 January 2005