Session 2010-11

Localism Bill

Memorandum submitted by Centre for Public Scrutiny (L 20)

Introduction

1.1 The Localism Bill was published on 13 December 2010. At the time, CfPS produced a detailed briefing on its contents which can be found at www.cfps.org.uk.

1.2 The Centre for Public Scrutiny is a national charity whose objectives are promoting transparent, inclusive and accountable planning and delivery of public services and supporting individuals, organisations and communities to hold decision-makers to account. .

1.3 The Bill consolidates a range of existing scrutiny legislation, brought in by various Acts. In doing so, we think that the opportunity should be taken to:

· Clarify some of the existing inconsistencies in the legislation;

· Take account of changes in policy and practice since the original legislation was passed;

· Make the law on scrutiny easier to understand for practitioners and other stakeholders;

· Bring in some of the provisions proposed in the Local Authorities (Overview and Scrutiny) Bill 2010, which had cross-party support.but failed to be enacted due to lack of Parliamentary time

1.4 The effect and operation of existing scrutiny legislation can be ascertained by looking at our publication, "Pulling it all together" (April 2010).

Scrutiny over the last ten years

2.1 There is a fallacy that scrutiny has failed to have an impact, or failed to be effective, since it was introduced as part of the Local Government Act 2000. John Denham MP, speaking as a Minister in the last Government, said that "in many ways, scrutiny is a lion that has failed to roar" – more recently, the Second Reading of this Bill involved a comment by Martin Vickers MP that, "On the overview and scrutiny role in local councils, a decade of trying to achieve a satisfactory system has, to the best of my knowledge, failed. There may well be some councils where there has been success, but not many."

2.2 This is not the case. While scrutiny may have not had a high profile nationally, it has helped to secure some significant improvements for local people in a number of different parts of the country. Every year we carry out an exercise called the Good Scrutiny Awards – a process that allows us to celebrate particularly high quality pieces of work. Last year we received nearly a hundred entries, most of which were of an extremely high standard. Some examples of these entries include:

- Recommendations resulting in significant cash savings for the authority and its partners;

- Recommendations leading to improvements in dialogue between the council and local residents;

- Recommendations directly leading to measurable improvements in local services, including some significant and high-quality work around value for money.

2.3 In doing so many scrutiny functions have successfully tackled issues that go beyond their council’s powers – directly enhancing local partnership working, examining local crime and disorder policy, helping their areas to meet the challenge of finding financial savings and, most significantly, opening up decision-making and policy development to democratic accountability.

2.4 Much of this work has been carried out in innovative ways – not only in formal committee meetings but by councillors going out, speaking to local people directly, and gathering evidence from a wide range of different sources.

2.5 In the future, increased partnership working, and increased local autonomy for a wide range of public services, means that it will become more and more difficult to discern whether a service is being delivered "within" or "outside" the council. Current scrutiny powers (and those in the Bill) do not help scrutiny functions to investigate issues which directly affect local people, but where their influence is limited because a partner agency is involved. One of the key changes we are recommending is an equalisation of the powers that scrutiny has over the council and other partners – including health and crime and disorder partners, who currently have slightly different responsibilities under different legislation (mainly for historical reasons). This will help to augment local, democratic accountability.

2.6 The series of amendments we suggest below are designed to achieve this end, and to clarify and simplify scrutiny legislation, which has become increasingly complex over the last ten years, imposes unreasonable requirements on scrutiny committees and fails to give them the clout they need, across the board, to give their work real profile and enhance their influence yet further.

Format

3.1 First, we will set out our proposals for amendments to the Bill as it stands. For simplicity this constitutes a complete rewrite of all the sections relating to scrutiny in Schedule 1, Part 1 of the Bill, from section 9F onwards.

3.2 Readers should note that the Health and Social Care Bill will involve amendments being made to the provisions in the Localism Bill which relate to health scrutiny (s175). We have sought to integrate the scrutiny powers in the Health and Social Care Bill with the Localism Bill.

3.3 Secondly, we will set out what is the purpose of the amendments. For ease of reading we have placed these explanatory notes in italics.

Implications of amendments

4.1 We have deliberately selected amendments that would maintain the existing framework of scrutiny, allowing practitioners more scope to innovate but keeping most of the broad powers similar to how they are now. There is nothing to suggest that the proposals will have cost implications, but they will make the business of scrutiny easier to transact, both for practitioners and those they are holding to account.

4.2 Principally, the changes we suggest bring together the existing – separate – regimes for the scrutiny of health, crime and disorder, and other local government matters. While the powers for a reference to the Secretary of State for Health relating to a substantial variation in NHS services are kept separate, everything else has been merged together, and scrutiny’s powers to challenge and hold partners to account are, in our suggested amendments, broadly similar to those which exist for their authority. We are convinced on the basis of evidence from scrutiny practitioners (and from partner organisations) that this need not result in an undue burden on these partner organisations. In practice, the approach that scrutiny has taken towards this kind of work has been proportionate.

4.3 This would not lead to scrutiny riding roughshod over other local agencies. We have been careful to suggest safeguards which require scrutiny to act in a proportionate manner. The amendments provide a framework within which scrutiny functions will have greater powers to engage with local service delivery issues, without being limited and constrained by the numerous anomalies which have built up over the years which make scrutiny work more difficult to prosecute.

4.4 We also suggest an expansion of the number of organisations with which scrutiny can engage. Rather than a list of organisations (although examples are given) the definition of such partners – or "designated persons" – should be a class description, as is about to be adopted in the proposed Local Government (Wales) Measure. In Wales, the Measure has gone through significant pre-legislative scrutiny and this definition has not been found wanting. As such we thought it appropriate to adopt for England as well.

4.5 Other suggested changes include:

- More power for scrutiny committees to follow up on their recommendations;

- The removal of the current requirement for some councils to co-opt four "statutory education co-optees" onto certain committees, which is a historic requirement that does not take account of the changes in education policy since 1996, and local authorities’ diminished role in education policy;

- The removal of the right of the Secretary of State to issue regulations and guidance on a number of issues – regulations and guidance which we, and practitioners, feel to be unnecessary;

- An equalisation of the roles and responsibilities of counties and districts in two tier areas. Anomalies exist between these powers which cannot be justified, and which we feel were introduced as the result of a misunderstanding on the part of Government of the way that scrutiny is carried out on the ground;

- Clarity on the roles and responsibilities of joint committees, which are becoming an increasingly popular way to transact scrutiny business in a proportionate, cross-authority manner, but whose operation is currently circumscribed unnecessarily by legislation.

Final note

5.1 The suggested amendments below do not correlate with the titles or section numbers of the Bill itself – we have altered the structure of the scrutiny part of the Bill to assist in clarity.

9F Overview and scrutiny: functions and definitions

(1)

(a) Governance arrangements of a local authority (whether under executive arrangements, the committee system or prescribed arrangements) must include the operation of an overview and scrutiny function (referred to in this Chapter as the scrutiny function) which must be operated by way of the appointment by the authority of one or more committees of the authority (referred to in this Chapter as overview and scrutiny committees).

(b) The role and structure of the scrutiny function, and of the overview and scrutiny committees, should be set out in the authority’s constitution.

An attempt to remove the committee-centric focus of the legislation by referring to the scrutiny function as well as its constituent committees

(2) Executive arrangements by a local authority must ensure that its overview and scrutiny committee has power (or its overview and scrutiny committees, and any joint overview and scrutiny committees, have power between them)-

(a) to review or scrutinise decisions made, or other action taken, in connection with the delivery of public services in the local area by the authority or another designated person,

(b) to make reports and recommendations to bodies delivering public services in the locality on matters which affect the authority’s area or the inhabitants of that area,

Amendments to this section bring scrutiny’s internal (executive-facing) powers and its external (partner-facing) powers – including health scrutiny powers – into alignment.

(3) In this Chapter, "joint overview and scrutiny committee", in relation to a local authority ("the authority concerned"), means-

(a) an overview and scrutiny committee of another local authority exercising relevant functions (within the meaning given by subsection (1) of that section) of the authority concerned, or

(b) a joint overview and scrutiny committee of two or more authorities exercising such functions.

Clarity given to the meaning of joint committees, cutting out references to other Acts

(4) The power of an overview and scrutiny committee under subsection (2)(c) to review or scrutinise a decision made but not implemented by the authority (call-in) includes power-

(a) to recommend that the decision be reconsidered by the person who made it, or

(b) to arrange for its function under subsection (2)(c), so far as it relates to the decision, to be exercised by the authority.

(5) For the purposes of this Chapter, a "designated person" is a person or organisation that commissions or provides services, goods or facilities to the public within their local authority area. This includes, but is not limited to:

(a) a relevant commissioner or provider of NHS services or social care services, subject to section 9FC;

(b) a responsible authority under the Crime and Disorder Act 1998;

(d) an integrated transport authority under the Transport Act 2008, a company providing local bus services or a Train Operating Company under the Railways Act 1993;

(e) JobCentre Plus;

(f) a flood risk management authority or emergency planning authority;

(g) the Environment Agency;

(h) the Highways Agency;

(i) the Homes and Communities Agency;

(j) a county council, in an area where the authority exercising its powers under this section is a shire district;

(k) a shire district, in an area where the authority exercising its powers under this section is a county council.

(6) In London, the relationship between London Boroughs and designated persons who are directly accountable to the London Assembly should be subject to the agreement of procedures between those organisations.

This section expands the scope of the existing scrutiny powers over partner organisations and constitutes the main substantive change in our amendments. CfPS has been arguing for a more coherent approach to partner powers for some time. We have taken the "designated person" terms and description from the proposed Local Government (Wales) Measure being sponsored by the Welsh Assembly Government which uses the same typology. The examples of organisations included provide guidance on this wider scope and for the first time integrate crime and disorder and health scrutiny within the wider framework of other statutory scrutiny powers.

It also gives counties the power to investigate services delivered by districts and vice versa. It is not intended that this power should be used unilaterally, but that it should permit the establishment of joint committees to transact such cross-authority scrutiny where this is thought appropriate.

References in the Bill as currently drafted to "local area agreements" and "local improvement targets" are also deleted by this amendment, as the relevant provisions are being abolished.

Subsection 6 takes into account the different partnership arrangements operating in London and suggests an approach to accountability that mirrors recent agreements between the Mayor / GLA / London Councils around new powers.

9FA Overview and scrutiny committees: supplementary provisions

(1) An overview and scrutiny committee of a local authority

(a) may appoint one or more sub-committees, and

(b) may arrange for the discharge of any of its functions by any such sub-committee

(2) A sub-committee of an overview and scrutiny committee may not discharge any functions other than those conferred on it under subsection (1)(b).

(3) A reference in this Act to an "overview and scrutiny committee" will include reference to a sub-committee established under subsection (1) and to a joint committee established under section 9F(3).

Subsection 3 is necessary to avoid continual repetition of this drafting principle through the rest of these sections and to clarify the position relating to joint committees. Under existing legislation it has been unclear to authorities whether joint committees have the full range of scrutiny powers or not, and legal advice has varied, causing inconsistency and uncertainty.

(4) An overview and scrutiny committee of a local authority may not include any member of the authority’s executive (under executive arrangements), the chair of a decision-making service committee (under the committee system) or any equivalent decision-making person or persons under executive arrangements.

Maintains the existing bar on decision-making members sitting on scrutiny committees, but expanding the scope to cover other governance arrangements.

(5)

(a) An overview and scrutiny committee of a local authority may include persons who are not members of the authority (co-optees).

(b) Any person co-opted under subsection (5)(a) will not be entitled to vote at any meeting of that committee, unless the Council’s constitution makes provision for such persons (either individuals or as a class of person) to vote.

Subsection 5 covers co-option, and the process by which co-optees are appointed to committees. It limits voting rights to situations where the Council’s constitution permits co-optees to vote. The statutory duty to have education co-optees is removed. This was a duty that more properly related to the co-optees’ role on councils’ School Organisation Committees, and Government has not presented a clear case for retaining this statutory duty since the establishment of scrutiny. The retention of the statutory co-optees affects political proportionality on the committees on which they sit, which can make business unwieldy to transact. Furthermore, the Government’s plans on additional autonomy for schools makes this requirement more difficult to retain.

Powers do exist to retain voting co-optees where councils consider this to be appropriate.

(6) An overview and scrutiny committee of a local authority is to be treated-

(a) as a committee or sub-committee of a principal council for the purposes of Part 5A of the Local Government Act 1972 (access to meetings and documents of certain authorities, committees and sub-committees), and

(b) as a body to which section 15 of the Local Government and Housing Act 1989 (duty to allocate seats to political groups) applies.

(7) Subsections (2) and (5) of section 102 of the Local Government Act

1972 apply to an overview and scrutiny committee of a local authority as they apply to a committee appointed under that section.

9FB Overview and scrutiny committees: powers

(1) An overview and scrutiny committee of a local authority -

(a) may require members of the executive (under executive arrangements), the chair of a relevant committee (under the committee system), officers of the authority or designated persons, as defined by section 9F(5) to:

(i) attend before it to answer questions, subject to section 9FC and 9FD,

(ii) provide information to it that relate to the functions of the committee, subject to section 9FC and 9FE,

(iii) have regard to any reports or recommendations that the committee produces that relate to the functions of the committee, subject to section 9FC and 9FF.

(b) may require any other member of the authority to attend before it to answer questions relating to any function which is exercisable by the member by virtue of section 236 of the Local Government and Public Involvement in Health Act.

Expanding the wording of the section to account for the existence of O&S under different governance arrangements and bringing together other disparate sections relating to invitations to various people to attend meetings, providing information and responding to reports and recommendations. .

(2) It is the duty of any member, officer or person mentioned in paragraph (a) or

(b) of subsection (1) to comply with any requirement mentioned in that paragraph, subject to section 9FF subsections (2) and (3).

The subsection relating to the right of witnesses to refuse to answer questions that they could refuse to answer in a court of law has been omitted as it is unnecessary; there is no corresponding part of the Bill requiring witnesses to answer all questions put to them. s9FF(2) and (3) is a partial replacement.

9FC Overview and scrutiny committees: powers in relation to substantial changes to local NHS services

(1) Where an overview and scrutiny committee proposes to use its powers under section 9FB(1) in relation to a relevant NHS body or NHS provider-

(a) it should have regard to any joint arrangements put in place under subsection (2) and (3)

(b) it should have regard to any formal consultation arrangements put in place under those subsections.

(2) When a relevant NHS body or NHS provider proposes a substantial change to the commissioning or provision of health services (referred to in this section as a "substantial change") that will affect the authority or authorities’ area, or the area’s inhabitants, it must consult the overview and scrutiny committee of that authority or authorities.

(3) Where a substantial change under subsection (2) affects more than one principal authority, or where it affects the services provided by a shire district in an area for which there is also a county council, the scrutiny functions of those authorities must either:-

(a) establish a joint committee to consider the proposal,

(b) put in place another joint working arrangement which allows all those authorities affected by the proposal to input into the response to the consultation.

(4) Where a committee or joint committee uses its powers under section 9FB(1) to scrutinise an NHS body or NHS provider, apart from subsections (1), (2) and (3) above, that organisation or person will be under the same obligation to attend meetings, provide information and respond to recommendations as any other designated person, subject to subsection (5) below.

(5) Where information or attendance at an overview and scrutiny committee is requested in connection to a substantial change, the relevant NHS body or NHS provider must satisfy that request in a manner that ensures that the overview and scrutiny committee has an opportunity to substantively contribute to the consultation.

(6) A relevant NHS body or NHS provider is required to provide a formal response to those it has consulted on a substantial change, including to any relevant overview and scrutiny committee. This response must set out:

(a) The action that the NHS body or NHS provider proposes to take with regard to the substantial change,

(b) The reasons for that decision,

(d) Any other information which the NHS body or NHS provider has agreed with any relevant overview and scrutiny committee shall be provided.

(7) If an overview and scrutiny committee or joint overview and scrutiny committee:

(a) is dissatisfied with the process of the consultation on the substantial change,

(b) is dissatisfied with the response provided by the NHS body or NHS provider to the consultation,

(d) is not satisfied that the substantial change is not in the interests of the inhabitants of the area,

It may:

(e) if it is not a joint committee, recommend that full Council refer the matter to the Secretary of State for Health for a direction.

(f) if it is a joint committee, refer the matter to the Secretary of State for Health for a direction.

(8) For the purposes of this section,

(a) "relevant NHS body" means an NHS body other than a Special
Health Authority which is prescribed for those purposes in
relation to the authority;

(b) "relevant NHS provider" means a body or person which provides
services under the Health and Social Care Act 2011 in pursuance of arrangements made by the Board or a commissioning consortium and is prescribed, or is of a description prescribed, for those purposes in relation to the authority.

These sections (above) clarify the position of health scrutiny, using the same language as that used in the Health and Social Care Bill. Essentially the powers remain those used in the NHS Act 2006 although clarity is given on the circumstances in which a reference can be made to the Secretary of State, and a link is built between the health scrutiny powers and the wider partnership powers listed earlier in the section.

9FD Overview and scrutiny: duty to attend meetings

(1) This section applies where an overview and scrutiny committee of a local authority proposes to use its powers under 0FB(1)(a)(i) to require a person to attend a committee meeting.

(2) When a request is sent to a designated person to attend a meeting of an overview and scrutiny committee, other than in accordance with section 9FC, that request must:

(a) give reasonable notice of the meeting, considering subject matter and urgency;

(b) make clear the purpose for which the designated person is being requested to attend,

unless the scrutiny function of the local authority and the relevant public body have agreed to waive or alter any of these requirements.

(3) Subsection (3) shall not apply when an overview and scrutiny committee proposes to use its powers under 9FB(1)(a)(i) to require an officer or member of the authority to attend the meeting.

More clarity given to the roles and responsibilities of scrutiny and partners in attendance requests, including a requirement that such requests be "proportionate" and "have regard to the body’s wider accountability and managerial arrangements". This tackles the concern expressed by some partners at the passage of the 2007 Act that they would be subject to unreasonable numbers of requests for attendance/information from scrutiny functions. The section highlights the need for such organisations to enter into protocols with scrutiny to facilitate this process.

9FE Overview and scrutiny: duty to provide information

(1) When a request is sent to a designated person to provide information to a scrutiny function, that request must:

(a) specify the format in which the information is to be provided,

(b) make clear the purpose for which the designated person is being requested to provide information;

(2) Subsections (1)(b) and (c) will not apply where a request is sent to an officer or member of the council to provide information.

9FF Overview and scrutiny: reports and recommendations

(1) An overview and scrutiny committee may publish reports and recommendations.

(2) Subject to subsection (3), the overview and scrutiny committee must by notice in writing require:

(a) the authority,

(b) the executive (under executive arrangements),

(d) a designated person:

to accept or reject the recommendation, and in doing so to:

(e) consider, and have regard to, the report or recommendations,

(f) respond to the overview and scrutiny committee within two months, advising what (if any) action that body or person proposed to take,

(g) provide reasons for the decision if the body or person proposes not to take any action,

(h) publish the response,

(3) In this section, an "accepted recommendation" means a recommemdation submitted to a person covered by subsection (2)(a-d), where the requirements of subsection (2)(e-h) have been satisfied.

(4) Subsection (2) will not apply where a recommendation is made which does not relate to:

(a) an issue for which the subject of that recommendation is responsible.

(b) an issue which does not affect the inhabitants of the area.

(4) An overview and scrutiny committee may require updates to be provided on the implementation of an accepted recommendation.

(5) Where an overview and scrutiny committee proposes to exercise the powers in subsection (4), this requirement must:

(a) be set out at the time the recommendation is made under subsection (2),

(b) indicate after what period of time an update, or updates, will be required,

These sections bolster scrutiny’s rights to a substantive response to recommendations and equalises these powers within and outside the council (in line with the reality of partnership working arrangements). They also provide powers for scrutiny to receive updates on the implementation of their recommendations, a vital power for scrutiny to be able to assess and demonstrate its effectiveness.

9FG Statutory scrutiny officers

(1) A local authority must designate one of its officers to discharge the functions in subsection (2).

(2) Those functions are-

(a) to promote the role of overview and scrutiny within the locality,

(b) to provide support to the authority’s scrutiny function,

(i) members of the authority,

(ii) such persons who are not members of the authority but who sit on an overview and scrutiny committee or committees,

(iii) officers of the authority,

(iv) other designated persons to which section 9F(2) applies,

in relation to the authority’s scrutiny function.

Slight expansion of the role of the statutory scrutiny officer to give them clearer powers to promote the role of scrutiny in the locality, to support co-optees and to provide advice on scrutiny to partner organisations.

(3) An officer designated by a local authority under this section is to be known as the authority’s "statutory scrutiny officer".

Minor alteration to the designation of the "statutory scrutiny officer" given that there are a number of officers whose role title is "scrutiny officer" in local authorities who may not be the designated "statutory scrutiny officer".

(4) The local authority must provide the scrutiny officer with such staff, accommodation and other resources as are, in the officer’s opinion, sufficient to allow the officer to discharge the functions in subsection (2).

This section was originally in the Local Authorities (Overview and Scrutiny) Bill 2010.

(5) A local authority may not designate any of the following under this

section-

(a) the head of the authority’s paid service designated under section 4 of the Local Government and Housing Act 1989;

(b) the authority’s monitoring officer designated under section 5 of that Act;

9FH Reference by a member of an authority to an overview and scrutiny committee (councillor call for action)

(1) The constitution of a local authority must include provision which enables any member of an overview and scrutiny committee of the authority to refer to the committee any matter which is relevant to the functions of the committee,

(2) For the purposes of subsection (1), provision enables a person to refer a matter to a committee or sub-committee if it enables the person to ensure that the matter is included in the agenda for, and discussed at, a meeting of the committee or sub-committee.

(3) The scrutiny function must develop and have regard to procedures ("councillor call for action procedures"), which should be applied by the relevant scrutiny committee, and which ensure that such provision referred to in subsections (1) and (2) operate in an effective way. Such provisions should ensure that:

(a) reference to committee occurs where other avenues for resolution have been exhausted,

(b) the matter affects all or part of the electoral area for which the member is elected or any person who lives or works in that area,

(d) such a reference is not vexatious, persistent or discriminatory.

This subsection combines the provisions in primary legislation relating to the councillor call for action with the associated regulations. It also implicitly combines the existing "CLG" councillor call for action with the "Home Office" version.

(4) In reaching their decisions under paragraph (3), the committee should also have regard to:

(a) any powers which the member may exercise in relation to the matter by virtue of section 236 of the Local Government and Public Involvement in Health Act 2007 (exercise of functions by local councillors in England), and

(b) any representations made by the member as to why it would be appropriate for the committee to exercise any of its powers under section 9F(2) and 9FB in relation to the matter.

(5) Where the committee proposes to refer a matter for discussion under subsections (1) and (2) it may have recourse to its powers under sections 9F and 9FB.

The sections on "councillor call for action" also omit the reference to "local government matter". With the introduction of the general power of competence, such a description has essentially become meaningless and it makes more sense to connect the councillor call for action to scrutiny’s more general powers in section 9F.

9FI Publication of reports, recommendations and responses – confidential and exempt information

(1) Schedule 12A of the Local Government Act 1972 shall have effect with regard to overview and scrutiny committees.

This section replaces the large section on confidential and exempt information, which is unnecessary if overview and scrutiny committees are bound to follow the same requirements on confidentiality and exemption as other council committees.

(2) Where publication would involve making public any confidential or exempt information, a summary of the document or report shall be produced which omits the information.

(3) Where a witness at an overview and scrutiny committee is asked a question, the answer to which would require them to provide information which would, if published, be confidential or exempt, they will not be obliged to do so if the committee is meeting in public.

This replaces the sections omitted elsewhere about the right not to say things at committee that a witness might refuse to say in a court of law. This section sets that exception in more realistic terms.

(4) In this section:

(a) "confidential information" has the meaning given by section 100A(3) of the Local Government Act 1972 (admission to meetings of principal councils),

(b) "exempt information" has the meaning given by

(i) section 100I of that Act, or in relation to a report or recommendations of an overview and scrutiny committee,

(ii) a resolution of the overview and scrutiny committee under section 100A(4) of the Local Government Act 1972 which applies to the proceedings, or part of the proceedings, at any meeting of the overview and scrutiny committee at which the report is, or recommendations are, considered

(iii) section 246 of the National Health Service Act 2006,

January 2011


©Parliamentary copyright	Prepared 26th January 2011

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