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Memorandum submitted by the Centre for Public Scrutiny (LGPI 1)
1.0 Summary
1.1 The Centre for Public Scrutiny welcomes the proposals within the Bill to give overview and scrutiny committees an extended role in ensuring local accountability. However we feel some proposals contained in the White Paper are not fully incorporated within the Bill, which could limit the impact of the legislation on public governance. Specifically we would like to question: - why the new powers do not extend to district councils - why the Bill does not require partners to attend scrutiny meetings when invited - whether the list of agencies covered by the duty to co-operate could be extended, at least for local scrutiny and accountability purposes - whether government is acting in a truly joined-up fashion over these proposals - capacity issues
2.0 Introduction
2.1 The Centre for Public Scrutiny welcomes the commitment in last year's White Paper on local government and in the Local Government and Public Involvement in Health Bill to strengthen the role and powers of the local government overview and scrutiny function. We believe this is recognition of the progress that has been made in developing scrutiny since its introduction only six years ago, and of the successes that many overview and scrutiny committees (OSCs) have had in: - holding decision-makers and service providers to account, - providing local democratic accountability, and - reviewing policies and practice for the benefit of local communities.
2.2 However, there are some gaps and limitations in the Bill, compared with the White Paper and what could be possible if we were to be really ambitious for the contribution that overview and scrutiny could make to public governance in a local community.
3.0 Why do the new powers not extend to Districts?
3.1 It appears from paragraph 95 of the Bill that the new powers to require partner authorities to supply information to scrutiny and respond to recommendations do not extend to District Councils (other than CDRP bodies under the Police & Justice Act). See extract below, relevant paragraph in bold:
"21C Reports and recommendations of overview and scrutiny committees: duties of certain partner authorities [...] (7) In this section- "the authority", in relation to a relevant committee, means- (a) in the case of an overview and scrutiny committee, the local authority by which it is established, and (b) in the case of a sub-committee of an overview and scrutiny committee, the local authority by which the overview and scrutiny committee is established,
"the executive", in relation to a relevant committee, means the executive of the authority,
"local improvement target" and "local area agreement" have the same meanings as in Chapter 1 of Part 5 of the Local Government and Public Involvement in Health Act 2007 (local area agreements),
"relevant committee" means- (a) any overview and scrutiny committee of- (i) a county council in England, (ii) a district council for an area in England in relation to which it has the functions of a county council, or (iii) a London borough council, or (b) a sub-committee of an overview and scrutiny committee within paragraph (a), and
"relevant partner authority", in relation to a relevant committee, means any person who is a partner authority in relation to the authority for the purposes of Chapter 1 of Part 5 of the Local Government and Public Involvement in Health Act 2007, other than- (a) a police authority, or (b) a chief officer of police; and references to a target relating to a relevant partner authority are to be construed in accordance with section 80(3) of the Local Government and Public Involvement in Health Act 2007."
3.2 We feel that this is an unnecessary diminution of District councillors' roles and responsibilities and comes from the CLG's insistence on focusing only on the LAA partners that can be easily identifiable in legislation (see below).
3.3 It will also be confusing for the public who already often do not understand why they have to ask District councillors one thing and County councillors another, but exacerbates this since even if the external agency's activities are relevant to the District Council's responsibilities eg the Environment Agency or Waste Authority, they have to ask a County Council scrutiny committee to investigate the matter. There are also questions about the skills and expertise within the County Council (members and officers) to support inquiries into such external agencies, where such knowledge would be more readily available in the District.
4.0 Why does the Bill not require partners to attend scrutiny meetings when invited?
4.1 The Bill does not seem to require attendance at a committee by a partner authority, only provide information. The requirement to attend which comes in paragraph 93 (Power of overview and scrutiny committee to question members of authority) applies to "any other member of the authority" ie the local authority of which the scrutiny committee is a part. This power already exists in the 2000 Act in relation to executive members of the authority and council officers and we welcome its extension to all members with delegated authority, i.e. through ward budgets.
4.2 However the bill wording does contrast with the intention in the White Paper in paragraph 3.35:
"we will require: · those public service providers (other than the police who will instead be subject to the new scrutiny arrangements set out in the Police and Justice Bill), covered by the duty to co-operate set out in chapter five either to appear before the committee or provide information to the committee within 20 working days (corresponding to the Freedom of Information Act deadline), insofar as their actions relate to functions or service delivery connected with the authority"
4.3 We know that overview and scrutiny committees have imaginative ways of shaming agencies into attending. One committee, holding an inquiry into service failure by one of the water companies which had resulted in households lacking water supplies for an unacceptable length of time, found that the water company refused to attend to explain what they were doing to put things right. Following the example of TV's Have I got News for You, and the tub of lard which replaced Roy Hattersley when he refused an invitation, they placed a leaky, rusty bucket on the table labelled with the name of the water company and got press interest in the company's failure to attend. They turned up at the second meeting, demanding their right to appear before the committee to put their case!
4.4 However, this is an unnecessary gap in the Bill, and would seem to result from lobbying from agencies against having to appear when asked. We understand from CLG officials that the Highways Agency has a policy of not appearing in front of local authority committees and this had been held up to us as evidence of the difference that the White Paper and Bill would make, but this appears to have been lost.
4.5 It contrasts not only with the pledge in the White Paper but also with the statutory power of Select Committees to require attendance. The status of select committees is always held up as what local government should emulate; some of this status comes from their clear powers. It also contrasts with the powers in the NHS Act 2006 to require attendance by NHS bodies at health overview and scrutiny committees, and the powers in the Police and Justice Act 2006 to require attendance by CDRP partner agencies. The wording in the NHS Act 2006, Chapter 3, Section 244, could offer a useful model:
"(2) Regulations may, in relation to an overview and scrutiny committee of an authority to which this section applies, make provision- [...] (f) requiring any officer of a local NHS body to attend before the committee to answer questions."
As could the wording in the Police and Justice Act 2006, Chapter 48, Part 3, Section 20:
"(3) The Secretary of State
may by regulations make provision supplementing that made by section 19 in
relation to local authorities in England. (5) Regulations under subsection (3) or (4) may in particular make provision- [...] (e) requiring officers or employees of the responsible authorities and the co-operating persons and bodies to attend before the crime and disorder committee to answer questions;"
5.0 Could the list of agencies covered by the duty to co-operate be extended for scrutiny's purposes?
5.1 We understand a need / wish to keep the list of partner authorities limited for the purposes of requiring co-operation in the LAA; there would be concern that non-core local agencies were being required to take on an unnecessary burden. It is for others to make a case for extending this in relation to the duty to co-operate in the LAA; there are some obvious omissions such as NHS Acute and Foundation Trusts.
5.2 However, we feel that with reference to a duty to respond to scrutiny inquiries, the list could be much longer and we do not see why there has to be only one list. For one thing, the risk of any unnecessary work burden will be much lighter than being required to co-operate in an LAA as scrutiny committees are not going to carry out inquiries into all local partners all the time. For another, retaining an umbilical link to the LAA is another reason for excluding Districts from the new scrutiny powers since Counties have been given the overarching responsibility for pulling together and co-ordinating the LAA.
5.3 We understand that the list was at one time longer and that certain key organisations were subsequently removed. We feel that they should be put back - in relation to scrutiny if nothing else. Such organisations could include, inter alia: · RSLs with housing stock in the local authority area · Former public utilities - water companies, electricity and gas supply companies etc · Train and bus operating companies · The post office · The proposed new Local Involvement Networks (LINks) - both hosts and members
5.4 All these organisations could be classified as performing "a public function" and so could be added in later under the provision which gives the Secretary of State powers to amend the list. However, we see no reason why they should not be added to the list now. They are all quasi-public bodies whose activities have a key impact on the lives of local communities and residents and who should therefore be under a duty to publicly explain their actions and policies and work with the local authority to make improvements. We do not understand why the Freedom of Information Act definition of bodies "performing functions of a public nature" or contracted to provide services of a public nature cannot be used to cover all such organisations, rather than relying on a future amendment by government regulation.
5.5 Social care and disability charities are arguing for any organisation providing a service under contract to the local authority to be required to respond to scrutiny inquiries. It is particularly relevant in the social care sector due to the increasing level of commissioned or contracted services but could apply more broadly to other commissioned or contracted out services. If the Bill is not amended in Committee, guidance should set out how councils could write these requirements into their procurement and contracting processes. If it does not matter who provides the service then their sector or status should not matter in terms of their accountability for use of public funds and/or provision of a service to the public, and there should be a level playing field between service-providers, whether public, private or voluntary sector.
5.6 Arguably at least some of the organisations and service providers suggested in 5.3 above (RSLs for example) have a greater affinity with local accountability mechanisms than some of the agencies included on the list already. For example bodies like the Environment Agency already have very clear accountabilities to Parliament for their statutory functions but they are included in the list. RSLs are likely to have a Board of Trustees which could include tenants' or community representatives and even local councillors. RSLs with a large housing stock locally will also probably already be involved in the LSP, and may even be partners with responsibility for some LAA targets, where some of the bodies identified in the list are unlikely to be. Their exclusion from the duty to co-operate and be held to account is strange.
5.7 The requirement for LINks (hosts and members) to provide information and attend meetings of OSCs would mirror to some extent the requirement for OSCs to respond to referrals from LINks. It would also enable the OSC to be the 'guardian of involvement' in its patch by making sure that LINks are delivering outcomes for local people and meeting their aim of reaching out to involve local people.
5.8 In all of the above, it has to be borne in mind that many scrutiny inquiries have already been carried out where the agencies mentioned have co-operated and played a full part in assisting the committee with their inquiry with no need for formal powers. The powers in the Bill are essentially a backstop and a means of enhancing the status of scrutiny by giving scrutiny committees more formal "teeth". However, that said, if the government is serious about enhancing the power and status of scrutiny, it is important that these backstop powers are drawn as widely and logically as possible.
6.0 The need for joined-up government
6.1 With this Bill there will be three different new Acts of Parliament granting specific powers of local scrutiny over different elements of the public sector: · NHS Act 2006 for health scrutiny · Police and Justice Act 2006 for CDRP scrutiny & CCA · Local Government & Public Involvement in Health Act 2007 for other public agencies as listed and CCfA
6.2 It seems to us that this Bill is a missed opportunity to put all these arrangements on the same legislative footing, with one set of unified powers and arrangements for local authorities to implement. In particular it is ridiculous to have two different kinds of Community Call for Action (CCA seems to be the Home Office variety, CCfA the CLG version!), since this provision is closest to the public. How will they understand which version is to be used and why there are different arrangements for crime and disorder matters and local government matters?
6.3
6.4 The Home Office is commissioning CfPS to write the wider guidance for CDRP scrutiny under the Police and Justice Act; however they have agreed to delay writing CCA guidance until it can be written jointly for CLG CCfA as well. The commitment in the White Paper Implementation Plan to working in partnership with interested organisations and in a coherent way across government is very welcome, but needs to be genuinely followed through.
7.0 Capacity issues
7.1 The new powers envisaged by the White Paper and Bill are welcome but there is concern around capacity to deliver. It is already an issue - not just in terms of funding but also in member and officer time and resources to support committees and inquiries. The White Paper's Regulatory Impact Assessment estimated that the new scrutiny powers would cost £25m a year to implement. It will be vital for this funding to be forthcoming via the Comprehensive Spending Review 2007 and next year's grant settlement. CfPS research shows that scrutiny cannot be done on the cheap. Councils have already been expanding the number of officers supporting the scrutiny function. This will need to continue if they are to take on this broader remit.
7.2 Specialist knowledge is also likely to become more of an issue if scrutiny inquiries are likely to be looking at more external bodies covering issues where no policy or practical knowledge is readily accessible within the council. Councils will need to be able to commission external expert support to build capacity and provide support and information to members. This has been part of CfPS's Health Scrutiny Support Programme which offered a number of days free expert advice on health issues to support health scrutiny committees' work. We also offer a paid-for service on other issues in partnership with LGIU.
7.3 CfPS's HSSP has also demonstrated the importance of awareness-raising and a learning curve that has to be gone through by all partners where external scrutiny is involved. Health partners had to understand the difference between executive councillors with whom they might have engaged previously and the scrutiny councillors who were now calling them in to ask questions. Scrutiny members had to expand their knowledge and understanding of health language and ways of working in order to enable them to ask the right questions. Support and information-sharing will be important across the much wider range of partners brought under scrutiny by the Bill, and this will require funding.
January 2007
Additional information:
- About The Centre for Public Scrutiny (see below)
About the Centre for Public Scrutiny:
The Centre for Public Scrutiny promotes the value and potential of scrutiny in modern and effective government - to hold executives to account and to create a constructive dialogue between the public and its elected representatives - to improve the quality of public services. We believe that 'better scrutiny means better government'. In the context of the Committee's inquiry this principle should be applied to ensure that councillors as 'community leaders' can be satisfied that local arrangements for patient and public involvement are able to facilitate reasonable, informed judgements between public opinion and professional judgement in ways that are understood and accessible to the public.
We promote four principles of good scrutiny that are mutually reinforcing and lead to improved public services through community leadership. These principles are outlined in further detail in 'The Good Scrutiny Guide' (attached). Good public scrutiny...1. provides 'critical friend' challenge to executive policy-makers and decision-makers2. enables the voice and concerns of the public3. is carried out by 'independent minded governors' who lead and own the scrutiny role4. drives improvement in public services
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