Effectiveness of local authority overview and scrutiny committees Contents

1The role of scrutiny

4.Before considering whether scrutiny committees are working effectively, it is important to consider what their role is and what effective scrutiny looks like. Local authorities are currently facing a number of challenges and competing demands, from an ageing population to budget shortfalls to promoting local growth in an often-hostile economic environment. It is therefore imperative that all expenditure is considered carefully and its impact is measured. However, measuring the impact of overview and scrutiny committees can be a significant challenge. Whilst identifying ‘good’ scrutiny is not always possible, the consequences of ineffectual scrutiny can be extreme and very apparent.

5.The Francis Report1 was published in 2013 following failings at the Mid Staffordshire NHS Trust. Whilst the failings were not attributed to local committees, the report was critical of local authority health scrutiny, highlighting a lack of understanding and grip on local healthcare issues by the members, little real interrogation and an over-willingness to accept explanations. Similarly, the Casey Report2 in 2015 on Rotherham Council cited particular failings in Rotherham’s approach to scrutiny, noting that “Inspectors saw regular reports to the Cabinet and Scrutiny committees, but not the effective challenge we would expect from elected Members.”3 The report also found that scrutiny had been undermined by an organisational culture that did not value scrutiny and that committees were not able to access the information they needed to hold the executive to account. Mid Staffordshire and Rotherham are two of the most high-profile failures of overview and scrutiny committees, but the issues raised in the two reports can easily occur in other local authorities, and we consider some of them in this report.

6.Overview and scrutiny committees were created by the Local Government Act 2000 and were designed to off-set increased centralised power established by the new executive arrangements. The Act replaced the committee system whereby decisions were made either by meetings of the full council or in cross-party committees which managed council services. For proponents of the committee system, one of its strengths was that all members had an active role in decision-making. However, as Professor Colin Copus from De Montfort University told us, it was “an illusion of power. If you put your hands up at the end of a meeting you feel, “I am powerful. I am making something happen”. I am sure I am not giving any trade secrets away, but most of those decisions are made two nights before in the majority party group meetings.”4 With the exception of councils with a population under 85,000, the 2000 Act created a requirement for authorities to establish an executive of a leader, or elected mayor, and cabinet members.5 Mirroring the relationship between Parliament and government, the Act also required the non-executive members of councils to scrutinise the executive by creating at least one overview and scrutiny committee. However, beyond some statutory requirements (for example designating committees to scrutinise health bodies, crime and disorder strategies, and flood risk management), how councils deliver scrutiny is a matter of local discretion.

7.Some councils have multiple committees that broadly align with departmental functions, while others have fewer formal committees but make greater use of time-limited task and finish groups. Similarly, as the Centre for Public Scrutiny (CfPS) identifies, different councils use different labels for their scrutiny work, including “select committees, policy development committees, or a number of other names. The use of different terminology can prove confusing [but] This is probably a good thing–it reflects the fact that scrutiny has a different role in different places, which reflects local need rather than arbitrary national standards”.6 Throughout this report references to ‘scrutiny’ and ‘scrutiny committees’ mean all committees and work associated with the overview and scrutiny committees required by the Local Government Act 2000.

8.Whilst acknowledging that scrutiny fulfils different roles in different areas, we believe that at its best, scrutiny holds executives to account, monitors decisions affecting local residents and contributes to the formation of policy. We therefore support CfPS’s four principles of good scrutiny, in that it:

9.We believe that as well as reacting to decisions and proposals from local decision makers, effective scrutiny can also be proactive and help to set a policy agenda. For example, Birmingham City Council’s Education and Vulnerable Children Overview and Scrutiny Committee carried out a review of the council’s work to tackle child sexual exploitation. As a result of the Committee’s work, the executive responded and addressed the issues raised:

The committee heard much harrowing evidence but produced a hard hitting report containing 19 strong recommendations. As a result of the report extra resources were allocated to the team co-ordinating CSE on behalf of the city. The council also undertook to strengthen its approach to safeguarding children by reviewing its statement of licensing and being more pro-active in using its executive powers of “the protection of children from harm”.8

10.Pre-decision scrutiny is also a vital part of a committee’s role. By commenting on and contributing to a decision before it has been made, scrutiny committees are able to offer executives the benefit of their ability to focus on an issue in greater depth over a longer period of time. For example, the London Borough of Merton’s Children and Young People Overview and Scrutiny Panel considered a site proposal for a new secondary school. As a result of its work, the Panel was “able to provide a detailed reference to Cabinet focusing on how to optimise use of the selected site and mitigate any negative impact”, helping the Cabinet to make a more informed and considered decision.9

11.The role of scrutiny has evolved since its inception. The 2000 Act empowers committees to review decisions made by the executive and to make reports and recommendations for the executive’s consideration. In the seventeen years since, the way in which scrutiny committees perform their function has understandably changed. One such way has been an increase in scrutiny of external bodies, most notably health bodies. Councils have delivered services through increasingly varied partnership arrangements - including contracting to private companies, creating arms-length bodies or working with other public bodies - and scrutiny has responded by adjusting how it scrutinises the issues that matter to local residents. The Department for Communities and Local Government (DCLG) highlights that “To support local councils adopting good practice, the Department for Communities and Local Government issues statutory guidance, to which councils must have regard when developing their localist scrutiny arrangements.”10 This guidance was last issued in 200611 and predates several legislative changes as well as changes to ways of working such as an increasing focus on external scrutiny and public participation (both discussed later in this report). When we asked Marcus Jones MP, Minister for Local Government, about the guidance, he told us:

It has been some time since we looked at the guidance on scrutiny … The initial evidence that you have taken indicates that in many places scrutiny is working well, but there are also instances in which overview and scrutiny committees could improve. It is therefore important that once we see the outcome of this Committee in the report that you provide, I take those recommendations very seriously. If there are areas where it is sensible and pertinent to update the guidance, we will certainly consider that.12

12.We welcome the Minister’s willingness to consider our recommendations carefully. We believe that there are many instances across the country where scrutiny committees are operating effectively and acting as a voice for their communities, however there remains room for improvement for too many and we believe that updated guidance from the Department is long overdue. We therefore recommend that the guidance issued to councils by DCLG on overview and scrutiny committees is revised and reissued to take account of scrutiny’s evolving role.

13.Throughout our investigations, we heard about a range of positive examples of effective scrutiny, some of which we have referenced in this report. We call on the Local Government Association to consider how it can best provide a mechanism for the sharing of innovation and best practice across the scrutiny sector to enable committees to learn from one another. We recognise that how scrutiny committees operate is a matter of local discretion, but urge local authorities to take note of the findings of this report and consider their approach.

1 Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, HC947, February 2013

2 Report of Inspection of Rotherham Metropolitan Borough Council, HC1050, February 2015

3 Report of Inspection of Rotherham Metropolitan Borough Council, HC1050, February 2015 p65

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5 There was also initially an option for Mayor and council manager executive, but this was later repealed. Smaller authorities were able to retain the committee system, as long as there was at least one overview and scrutiny committee. The Localism Act 2011 extended this option to all authorities, but the requirement of a designated scrutiny committee was removed.

6 Centre for Public Scrutiny (OSG098) para 6

7 Centre for Public Scrutiny (OSG098) para 38

8 Birmingham City Council (OSG087) part 3

9 London Borough of Merton (OSG037) page 12

10 Department for Communities and Local Government (OSG122) para 5

11 Department for Communities and Local Government, New council constitutions: guidance to English Authorities (May 2006)

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14 December 2017