Political and Constitutional Reform CommitteeWritten submission from the Centre for Public Scrutiny

Introduction

The Centre for Public Scrutiny (CfPS) welcomes the Inquiry as a timely contribution to the debate about whether power, responsibility and accountability should lie more at local than at national level. We believe that mechanisms to secure effective public scrutiny should be viewed as central to all debates about this rebalancing of power. If there is to be a codification of the relationship between central and local government, it should make clear not only where the power lies to take decisions on particular issues, but also how those who will wield that power will be scrutinised and held to account in a meaningful and constructive way—whether at local or national level. We have structured our response around the consultation questions but have only responded in detail to those questions where we have a particular interest and expertise as CfPS.

About CfPS

The Centre for Public Scrutiny is widely regarded as the leading national voice for public scrutiny and accountability. We are an independent charity which aims to:

enhance understanding of what scrutiny and accountability mean, why they matter and how they can benefit everyone, including decision-makers;

provide space for decision-makers, scrutineers and other stakeholders to share ideas and learn together;

highlight what works well and encourage people to try it in their area; and

provide evidence-based and relevant guidance that gives people the tools to approach their role with confidence.

We promote policy and provide wide ranging practical support. We work across government (for example with the Department of Health, Communities and Local Government, Home Office, Department of Work and Pensions), with the Local Government Group and with stakeholders across primary and acute healthcare, regulators, in parliament and with academics and other think tanks. We have supported councils, NHS bodies, police authorities, universities, Local Involvement Networks and others individually and collectively through our comprehensive published guidance, on-line tools, events and network of expert advisors.

In summary, our mission is to promote better scrutiny to achieve greater accountability, transparency and involvement. We believe that better scrutiny means better government, because someone who makes a decision should not be the only one to review or challenge it.

Summary of our Submission

Before the relationship between central and local government can be codified, the purpose of local government as opposed to local administration/delivery should be clarified.

There should be consistent acceptance across government of the principle that while national government can determine national priorities, where these impact on the role and purpose of local authorities, they should be able to determine how to achieve outcomes locally, based on their knowledge and understanding of the local situation.

Robust, evidence-based scrutiny is a key element of good governance at all levels of decision-making and must be recognised and supported as such in any codification of powers.

It should be clear in any codification that where local government may be given new powers, these must be matched by strong accountabilities, to provide checks and balances on the exercise of power.

Scrutiny contributes to the principles of accountability, transparency and involvement, which are the three pillars supporting a healthy democracy and can help achieve the government’s aim of moving from “bureaucratic” to “democratic” accountability.

Local accountability arrangements need legitimacy, credibility and utility to be effective.

National and local scrutiny could usefully learn from each other in order to improve accountability across the board.

CfPS’s Accountability Charter offers a tool to help organisations assess their own accountability and transparency to ensure their governance systems are fit for purpose.

The power of “general competence” should be underpinned by a “presumption of subsidiarity” to embed the principle that decisions should be made at the most local level appropriate, closest to citizens, in order to strengthen local transparency and accountability.

Questions

1. Should the relationship between central and local government be codified?
Should codification of the relationship between central and local government be considered in the context of a wider constitutional codification?

1.1 We think that before the relationship between central and local government can be codified, the purpose of local government as opposed to local administration/delivery should be clarified. The benefits of local government as opposed to local administration are, amongst others:

Greater local accountability and transparency in decision-making.

Services more appropriate and responsive to the needs of the local population.

More ability of local people to influence the extent and nature of public services.

Providing a representative voice for a local area and its communities.

A fundamental democratic principle that decisions over allocation of resources and service priorities should be made by elected representatives.

1.2 Any codification and its implications for other strands of government and the public sector should also be clearly signed up to by the whole government, not just one department, in order to address the problems of inconsistency that we set out in response to the Committee’s second question below.

2. If codification is appropriate, what degree of independence from central government and what powers should local government be given?

2.1 It is entirely right that the elected national government should have the ability to direct national resources according to its national priorities. Foreign and defence policies are clearly national issues. In domestic matters, the national prerogative is most obviously relevant when it comes to redistribution of resources in order to tackle inequalities of resource, opportunity and outcomes that may exist between different localities of the country. However, elected local government should nonetheless be able to determine the ways in which it tackles those inequalities in its locality as it sees fit. If central government can determine what, local government should at the very least be able to determine how.

2.2 The previous government was certainly guilty of “sucking up powers to the centre” and dictating not only the “what” but also the “how”, and thereby reducing local agencies’ capacity to actually achieve the “what”. To give an example from one policy area, tackling the problems of crime, violence, ill-health etc arising from drugs abuse was identified as a national priority, targets were set and funds provided specifically in order to meet those targets. In many local areas, the same problems of violence, crime and ill-health derived from alcohol abuse, yet the funding could only be used to deliver actions on the drug abuse targets. The real aims of tackling the outcome problems of crime and violence were lost because of narrowly specified targets drawn around inputs and closely ring-fenced funding.

2.3 The new government has said that it will rebalance the relationship between central and local by removing the large number of targets set by the previous government. Along with a new power of “general competence” and removing some of the ring-fenced funding streams, the stated aim is to free up local government to focus on what matters locally. In October, for example, reporting on 4,700 targets was removed with the abolition of Local Area Agreements. Instead there will be a single set of agreed “Whitehall data requirements”. There are two caveats to this greater proposed independence and welcome reduction in reporting upwards on nationally determined targets (although many of the LAA targets were set locally and then agreed with the centre).

2.4 Firstly, it would be a mistake to go too far in the other direction. Collecting data on a consistent basis enables comparisons to be made and accountability to be exercised locally, whether on questions of value for money and efficiencies such as unit costs or on choices which have been made locally and their justification. If central government removes itself from this arena, it will fall to the local government sector to collectively agree what data it needs to collect for comparative purposes.

2.5 In Lincolnshire, for example, there is a value for money committee, chaired by a member of the opposition, which provides independent assurance by examining key projects in depth and ensuring a focus on value for money is maintained. Members of the committee make significant use of the National Indicator Set to help them assess how well their council is doing. Following the announcement of the abolition of the NIS, they are examining “what to count” in Lincolnshire to determine how to replace it locally. However, if others do not carry out the same exercise, the comparative element will be lost.

2.6 Secondly, and more fundamentally, governments are not consistent in their approach to local government. The previous government often went around local government by creating new bodies such as New Deal for Communities Boards to administer ring-fenced funding streams, often duplicating or competing with local authority plans and services. Departments within the current government vary considerably in their approach to granting new local powers and freedoms: at DfE, schools are to be removed still further from local government influence and support, while in other departments the approach to localism does not mean providing powers to local government but to new structures such as elected police commissioners and GP commissioning consortia.

2.7 Even at Communities and Local Government, there are still pronouncements to councils over how frequently bins should be collected and how often council newspapers should come out and what they should contain. Codification would bring welcome consistency to all governments’ approaches to local governance and service delivery, but the most important element of any codification needs to be a clear statement, owned collectively across government, agreed with local government and consulted on with the public, about the role and purpose of local government—as opposed to local service delivery by disparate agencies of central government. Only with this clarity of purpose and role can the public then exercise meaningful accountability over both central and local government.

3. How, if at all, should the status of local government be entrenched, or protected from change by central government?

3.1 See our comments below in relation to the European Charter of Local Self-Government.

4. What consequences should codification or other change in the relationship between central and local government have on the accountability of local authorities to elected local politicians, local people and central government?

4.1 We believe that codifying the relationship between central and local government could help clarify and strengthen local accountability, but only if the importance of democratic scrutiny and the contribution that it can make to accountability is incorporated into any codification.

4.2 Our recent research, “Accountability Works!”, a copy of which is attached, established that there are many different kinds of accountability and that they need to interact and be mutually reinforcing if accountability is to be meaningful. For example, accountability can be achieved:

Through the ballot box and elections.

Through transparency of information and the media investigating and reporting publicly on decisions.

Individually through the market and consumers exercising choice or raising complaints and seeking redress for wrongs.

Through regulation, inspection and audit.

Through internal management processes.

And through scrutiny carried out by lay non-executives in select committees or local government overview and scrutiny committees.

4.3 No single one of these forms of accountability can deliver on its own. For example, elections only take place every four years and there need to be other ways of holding politicians and public services to account in between elections. Consumers are helped in exercising choice through the provision of information from the press, inspection reports and transparency. Scrutiny can hold services to account by drawing on customer feedback to challenge performance and policy, and can do this by involving service users and vulnerable groups in new and innovative ways. In Cheshire West and Chester, for example, councillors and officers spent time with looked after children at the local zoo and “Go Ape” leisure venue to build up the young people’s trust and get their views and input to a scrutiny review. It can also draw people into the democratic process: in Enfield, for example, two people involved in a hospital closure campaign stood for election to the council because they had seen the potential of health scrutiny to influence service change and wanted to get involved in a more holistic way.

4.4 In “Accountability Works!”, we set out how accountability is thus one pillar supporting a healthy democracy, alongside public involvement and transparency, and how all three bolster traditional representative democracy by bringing more participative mechanisms into play. This is illustrated in the diagram below:

4.5 Scrutiny and challenge by non-executive councillors is a key way of ensuring that executive councillors are more accountable to local people for the services which they lead, and that public officials are more accountable to elected councillors and local people for the services which they manage. Democratic scrutiny complements transparency and provides a route by which the public can get involved to raise their concerns about published information and get things investigated and action taken—strengthening accountability between elections.

4.6 It should therefore be clear in any codification that where local government may be given new powers, these must be matched by strong accountabilities, to provide checks and balances on the exercise of power. Powers should devolve in the first place to the council as a corporate body, not simply as executive functions to the leadership of the council. If the executive functions of the council are expanded, the powers of other councillors to scrutinise and challenge the executive should also be expanded, and this should be clear in the codification. We think that this would help meet the government’s stated aim of moving from “bureaucratic accountability” to “democratic accountability”.

4.7 Secretary of State Eric Pickles has said that he only needs to know that local decision-making arrangements are “open, transparent and accountable”. We think that there are three tests for whether local arrangements not only deliver these principles but are also effective. They should be credible (in terms of having the powers, expertise and resources necessary to justify a position of local influence) and legitimate (in involving local people, and being led by people who are selected, or elected, by local people or groups). Furthermore, the system needs to have utility—it has to demonstrate that it can succeed in improving services, rather than just providing accountability for its own sake. This conclusion also derives from our recent research “Accountability Works”.

4.8 CfPS is developing an Accountability Charter, based on our research, which will enable all organisations spending public money to deliver public services to demonstrate how—in whatever way they consider appropriate to their local circumstances—they are meeting the principles of openness, transparency and accountability and doing so in a way which is credible, legitimate and useful.

4.9 We also think that there could be stronger links between local and national scrutiny in order to improve accountability across the board. The vital work carried out at national level by select committees should be promoted to local scrutiny committees, and local scrutiny committees’ findings about how services need to improve on the ground should be drawn on to inform the national assessments of such services by select committees. CfPS works to encourage these links in practical terms, for example during purdah, we facilitated a number of placements with local overview and scrutiny teams for select committee clerks to share experiences and perspectives, and this was felt to be useful by all concerned.

5. Does the devolution settlement provide a relevant model for a possible codification of the status of local government?

5.1 This is not our area of expertise so we have no comments.

6. Are there examples of constitutional settlements between central and local government in other countries that are relevant to an appropriate model for the UK?

6.1 It is difficult to compare English local government profitably with that operating in other countries. Lessons from elsewhere are likely to have limited application because local service delivery is bound up in wider structural and constitutional issues relating to the operation of Government more generally, and to social, cultural and political issues beyond the purview of this inquiry. Some limited lessons might, however, be learned from the experiences of Commonwealth countries whose systems of governance most closely resemble that of England, and to the United States, where strong and highly local civic leadership forms a central part of citizens’ relationship with the state. However, the whole constitutional context is very different in America, with a population who are citizens (not subjects) with an elected head of state and clear separation between executive, legislature, judiciary and church.

6.2 Having said that, in South Africa, Johannesburg has for some years been trialling an executive/scrutiny split in decision-making which is now being rolled out across the country and it would be interesting for the inquiry to examine why they have chosen to adopt this model of local governance from English local government, particularly in the context of a very consciously and recently adopted written constitution.

7. What is the value of existing attempts to codify the relationship between central and local government, through: the Central-Local Concordat or the European Charter of Local Self-Government? Should this Charter be placed on a statutory footing?

7.1 The European Charter of Local Self-Government contains the broadest and most universally accepted set of principles around local self-government. Since these principles have been accepted (in spirit if not in law) by successive governments to varying degrees, but the imbalance of power between central and local government has been maintained and even extended further towards the centre, it could be argued that only by putting it on a statutory footing will the principles become meaningful and enforceable.

7.2 Putting the Charter on a statutory basis would add clarity and transparency to the relationship between central and local government. In other words, central governments could be scrutinised and held to account against a public commitment to localism articulated in quite specific terms. We think that this would be in tune with the thrust of the coalition’s programme for government and its commitments to transparency.

8. How would the “general power of competence” for local authorities proposed by the current Government affect the constitutional relationship between central and local government?

8.1 A “general power of competence” for local government would not, of itself, prevent central government potentially interfering to an unwarranted degree in matters properly left to local discretion, since it only allows local authorities competence on issues which are not proscribed by national law. To avoid this potential for undermining the principle behind the “general power of competence”, it should be underpinned by a “presumption of subsidiarity”—that decisions are made at the most local level appropriate to the nature and scale of the decision. This is clearly expressed in the European Charter of Local Self-Government at Article 4: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen.”

9. Additional comments

9.1 To reinforce the points we have made about the need for strong local accountability to replace the previous approach of focusing accountability upwards to the centre, we would add that developing a culture of open decision-making is as important—if not more so—as any constitutional structures and codes. However, structures can be important. For example, the opportunity for objective, evidence-based challenge and review is key to developing a culture of open decision-making.

9.2 We are concerned that proposals to allow councils to return to the committee system of decision-making may lose this essential quality, since by definition service committees are designed to enable the majority group to get its decisions on services agreed by its members on the committee. While the principle of councils determining their own structures is entirely in accord with the European Charter of Local Self-Government, we believe that there are many strengths deriving from the opportunity for independent, objective scrutiny which it would be detrimental to accountability to lose.

9.3 For example, we believe that there is evidence of how scrutiny with real teeth can work well particularly in health scrutiny, where health overview and scrutiny committees have the power to refer consultations on major reconfigurations of health services to the Independent Referrals Panel who then advise the Secretary of State. The IRP have commented that health scrutiny committees have acted responsibly in exercising these powers, which have generally been used only as a long stop, when all local attempts to build consensus have failed. The IRP’s view is that health scrutiny has been “good for everyone”. While the recent Health White Paper initially proposed removing formal health scrutiny powers, responses to the consultation overwhelmingly backed retention of health scrutiny and we understand that the government is actively considering this. There were also concerns expressed about the potential abuse of the “call-in” power, when it was originally introduced, but other than in a few cases, by and large it has been responsibly exercised, with the average number per authority remaining low at two to three per year. We believe that this demonstrates that when given real power, scrutiny can be trusted to exercise it responsibly and to support a culture of local openness and accountability.

9.4 The Birmingham “Who Cares” report is a further example of where scrutiny has acted in a genuinely independent and rigorous fashion to provide challenge and identify the key areas where action was needed to improve the service, and a summary of this example of strong local accountability is included in the attached “Successful Scrutiny 2010” report. The press coverage of the Birmingham scrutiny report (produced by a committee chaired by a member of the majority party) constantly referred to it as “external” and “independent” as if they could not believe that such a hard-hitting report could have been produced internally. The chair has now been co-opted by the executive to oversee implementation of his committee’s recommendations, and has himself argued that, having been a committee chair in the old metropolitan county council in the 1980s and 1990s, scrutiny provides more power to create change and improve things than the old system.

9.5 We look forward to expanding on any of the above points in our oral evidence session and can provide further examples of good practice on the ground to illustrate these points if that would be useful. We would like to thank the Committee for giving us the opportunity to contribute to this important and timely inquiry.

3 December 2010

Prepared 28th January 2013