14.As discussed above, councils across the country deliver scrutiny in a wide range of different ways. We are of the view that whichever model of scrutiny a council adopts it is far less important than the culture of an organisation. Council leaders, both politicians and officials, have a responsibility to set the tone and create an environment that welcomes constructive challenge and democratic accountability. Jacqui McKinlay from the CfPS explained to us:
If you have buy-in to scrutiny at the top of the organisation—that is the leader, the cabinet and the chief executive—it tends to follow that scrutiny is resourced … However, if you do not get buy-in to a scrutiny approach—that openness and transparency and the willingness to be questioned, seeing the value of scrutiny—it tends to follow that it is not resourced as well and you do not get that parity of esteem … If your leadership is closed to that sort of challenge, it does not just affect scrutiny; it affects a lot of how the organisation is run.
15.The Minister for Local Government echoed this view when he told us:
I think that where scrutiny is done properly in local authorities that have the right culture, and where scrutiny is taken seriously, it can perform an excellent function in relation to how the executive works by holding them to account and putting them in a position where they probably make decisions that are more in the interests of the people they represent and local residents than they otherwise might be.
16.All of the examples of effective scrutiny that we have heard about have in common an organisational culture whereby the inherent value of the scrutiny process is recognised and supported. Senior councillors and officers that seek to side-line scrutiny can therefore miss out on the positive contributions that scrutiny is capable of, and put at risk a vital assurance framework for service delivery. The Nottingham City Council Overview and Scrutiny Committee explains that:
there can be a perception that overview and scrutiny is an ‘add on’ rather than an integral part of the organisation’s governance arrangements… [with the executive arrangements] there can be a tendency for council officers to feel that they are primarily accountable to one councillor which risks overlooking the important role of other councillors, including those engaged in scrutiny activities, within the decision making structure. As a result the function is not always afforded the prominence it deserves and opportunities to make the most of its potential can be missed.
17.We are concerned that the relationship between scrutiny and the executive has a tendency to become too unbalanced. With decision-making powers centralised in the executive, scrutiny can be seen as the less-important branch of a council’s structure. Professor Copus highlighted that there is no parity of esteem in the eyes of many councillors:
One of the things I have noted in all of the work I have done on scrutiny since 2002 is I have only ever once come across a councillor who said, “If you offered me a place in the cabinet, I would reject it. I want to stay a chair of scrutiny”. I am sure there are more than the one I have met, but that is an indication.
18.Professor Copus argued that this imbalance in esteem is also reflected in council officers:
I found many officers will know the council leader’s name and the name of the portfolio-holder for their particular area of interest, but they might not know the scrutiny chairperson’s name. Once you start to see that, you see the whole thing begin to crumble.
19.If neither councillors or officers explicitly recognise the importance of the scrutiny function, then it cannot be effective. Part of the challenge lies in identifying what effective scrutiny actually looks like, as discussed earlier in this report, as councils are more likely to allocate diminishing resources to functions where there can be a quantifiable impact. However, all responsible council leaderships should recognise the potential added value that scrutiny can bring, and heed the lessons of high profile failures of scrutiny such as those in Mid Staffordshire and Rotherham.
20.Council leaderships have a responsibility to foster an environment that welcomes constructive challenge and debate. However, opposition parties also have a key role to play in creating a positive organisational culture. We agree with the Minister who told us that:
At the end of the day, if an opposition takes a reasonable view on these things and treats the executive with respect, but challenges them when challenge is necessary, rather than just for the sake of challenge, I think you can get to a situation where you have—not much of an agreement politically, probably, but there could be mutual respect. That would serve the scrutiny function well.
21.Parliamentary select committees have a well-established independence from the executive in that they do not report to the Government, but to the House of Commons as a whole. In contrast, it is less clear where local authority scrutiny committees report to, with most reporting to the executive that they are charged with scrutinising. The Institute of Local Government Studies (INLOGOV) at the University of Birmingham argues that it should be made clear in guidance that scrutiny reports and belongs to Full Council, not the executive:
As of now, most scrutiny committees report to the Executive–with only some inviting the scrutiny chair and members who have written a report to present it. A few present reports to the full council. When they do so, this has the opportunity to create a relevant and interesting debate on a matter of local concern which has been investigated in depth by a group of councillors. Such a debate enables other councillors to see what scrutiny has done, and to add their own experiences. Councils should be required to have Reports from scrutiny on all council agendas.
22.Cllr Mary Evans told us that she welcomed the suggestion that scrutiny should be accountable to Full Council. We also heard from Cllr John Cotton from Birmingham City Council, whose scrutiny committees do report to Full Council. He told us that:
speaking from Birmingham’s perspective, due to the fact that everything reports through to full council we have been able to preserve some of that independence of approach, but from the conversations I have been having that certainly needs to be echoed in other authorities.
23.To reflect scrutiny’s independent voice and role as a voice for the community, we believe that scrutiny committees should report to Full Council rather than the executive and call on the Government to make this clear in revised and reissued guidance. When scrutiny committees publish formal recommendations and conclusions, these should be considered by a meeting of the Full Council, with the executive response reported to a subsequent Full Council within two months.
24.Scrutiny committees must have an independent voice and be able to make evidence-based conclusions while avoiding political point-scoring. In order to do this, they need to be sufficiently resourced, have access to information (both discussed in greater detail below) and operate in an apolitical, impartial way. Committees of local councillors will always be aware of party politics, but sometimes this can have too great an influence and act as a barrier to effective scrutiny. Jacqui McKinlay from the CfPS told us that “We often say that local government scrutiny is a perfect system until you add politics to it. In our last survey, 75% of people say that party politics affects scrutiny.” Professor Copus also recognised the party-political dynamic to scrutiny when he described to us:
members from opposing political parties, one seeing their role as using scrutiny to attack the executive and the other seeing it as a forum in which to defend the executive. If that is the interaction, you are not going to get executive accountability … In terms of a lot of the issues that are problematic for overview and scrutiny, the interplay of party politics is often at the heart of it. I will quite often hear councillors, even from majority groups, admitting that one of the reasons scrutiny is not as effective as it can be is because of the relationship between the opposing groups.
25.The Local Government Act 2000, and the guidance issued by DCLG, specifies that members of a council’s executive cannot also be members of overview and scrutiny committees. A Private Members’ Bill in 2009 made provisions to allow executive members to sit on committees during scrutiny of external bodies (on the basis that in such instances, it was not the executive that was being scrutinised). The Bill did not pass through the House of Commons, and we are wary of any such attempts to dilute the distinction between executive and scrutiny functions. We heard of instances at the workshop of executive councillors effectively chairing scrutiny committee meetings where the NHS was under scrutiny, and are concerned by such practices. We believe that executive members should attend meetings of scrutiny committees only when invited to do so as witnesses and to answer questions from the committee. Any greater involvement by the executive, especially sitting at the committee table with the committee, risks unnecessary politicisation of meetings and can reduce the effectiveness of scrutiny by diminishing the role of scrutiny members. We therefore recommend that DCLG strengthens the guidance to councils to promote political impartiality and preserve the distinction between scrutiny and the executive.
26.Political impartiality can also be encouraged through the process for appointing chairs of committees. Overview and scrutiny committees are required to have a membership that reflects the political balance of a local authority, but there are a range of different approaches for appointing the chairs and vice chairs of committees. Many authorities specify that committee chairs must come from opposition parties, others allocate chair positions proportionally among the parties on the council and others reserve all committee chair positions for the majority party. The Centre for Public Scrutiny states that:
Legally, the Chairing and membership of overview and scrutiny committees is a matter for a council’s Annual General Meeting in May. Practically, Chairing in particular is entirely at the discretion of the majority party. Majority parties can, if they wish, reserve all committee chairships (and vicechairships) to themselves … the practice of reserving all positions of responsibility to the majority party is something which usually happens by default, and can harm perceptions of scrutiny’s credibility and impartiality.
27.Chairs from a majority party that are effectively appointed by their executive are just as capable at delivering impartial and effective scrutiny as an opposition councillor, but we have concerns that sometimes chairs can be chosen so as to cause as little disruption as possible for their Leaders. It is vital that the role of scrutiny chair is respected and viewed by all as being a key part of the decision-making process, rather than as a form of political patronage.
28.Cllr Mary Evans, chair of the scrutiny committee at Suffolk County Council, told us of her efforts to keep party politics out of scrutiny as a chair from a party with a sizeable majority: “We do it by involving the membership of the scrutiny committee at every point of an inquiry … we had a workshop just after our elections in May to look at what our forward work programme would be. The membership together has picked the programme.” When asked whether the size of her party’s majority made this easier, Cllr Evans explained that “When I first chaired scrutiny, in 2015, we had a majority of only one. I wanted to work across the committee. I did not have the luxury of a large majority … We try to be as open and transparent as scrutiny should be, so the membership is engaged and involved in every aspect of the inquiry.” Cllr John Cotton, lead scrutiny member at Birmingham City Council, is also a scrutiny chair from a majority party and he told us that whilst it is important to acknowledge the role of party politics, scrutiny works best when non-partisan:
In terms of the discharge of the scrutiny function, certainly we proceed on a very non-partisan basis. All of our full scrutiny reports go to full council. I can only recall one occasion in the last 15 years where we have had a minority report because there has been a partisan division. Frequently those reports are moved by the chair and seconded by a member from an opposition party. You then have collective ownership of those recommendations, because they are taken by full council. The scrutiny process draws its strength from the fact that we have those inputs from members across the piece … There is a little bit of grit in the system, if you like, which comes from the party-political roots of members, which you do not want to remove entirely.
29.Cllr Sean Fitzsimons, chair of the Scrutiny and Overview Committee at Croydon Council, echoed this view when he told us that as a chair from a majority party that made critical recommendations of his executive “you have to go along with it if you believe that scrutiny is a function of the backbenches and that you have to put aside your party loyalties in the short term.” However, Cllr Fitzsimons argued that scrutiny is at risk of becoming more partisan and that the process for choosing a chair needed consideration:
My worry is that, as people have drifted away, over time, from what the original aspect of overview and scrutiny was, party politics have played a greater role. If I was looking at this issue, I would look at the political culture of each political party. In the Labour group, under the standing orders of the national party, [scrutiny chairs are] not appointed by the leadership of the Labour group, so I am independent of my leader, so I have a little bit of leeway. My two best chairs that I ever had from the opposition group were so good at scrutiny that they were sacked by their political leader when he was in power. Within the Conservative group, chairs of scrutiny can be appointed effectively by the leader of the council or by the cabinet, and I do think the political cultures of the parties really influence it.
30.We believe that there are many effective and impartial scrutiny chairs working across the country, but we are concerned that how chairs are appointed has the potential to contribute to lessening the independence of scrutiny committees and weakening the legitimacy of the scrutiny process. Even if impropriety does not occur, we believe that an insufficient distance between executive and scrutiny can create a perception of impropriety. We note, for example, the views of the Erewash Labour Group:
The Scrutiny Committee in this Authority protects the Executive rather than holding them to account. If they are ever held to account it is within the privacy of their own Political Group Meetings which are not open to the public. Most of the important decisions are first made in the Group Meetings … The opposition have made some very sensible suggestions during Scrutiny debates only to be told “We have already decided this.” Cabinet Members may not attend Scrutiny Meeting unless by the invitation of the Chair. This rule was brought in to stop Cabinet Members exerting any undue pressure on members by their presence. Now they simply exert pressure in other ways such as by the choice of member selection and also the selection of the chair.
31.It is clear to us that scrutiny chairs must be seen to be independently minded and take full account of the evidence considered by the committee. We note the evidence from the Minister who outlined the Government’s prescription that chairs of scrutiny in the new mayoral combined authorities must be from a different political party to the executive mayor in order to encourage effective challenge. Similarly Newcastle City Council where all scrutiny chairs are opposition party members, states that:
This has taken place under administrations of different parties and we believe that it adds to the clout, effectiveness and independence of the scrutiny process; it gives opposition parties a formally-recognised role in the decision-making process of the authority as a whole, more effective access to officers, and arguably better uses their skills and expertise for the benefit of the council.
32.In 2010, recommendations from the Reform of the House of Commons Committee’s report ‘Rebuilding the House’ were implemented to change the way Parliament worked. One such recommendation was the introduction of elections for select committee chairs by a secret ballot of all MPs. In 2015, the Institute for Government published an assessment of parliamentary select committees and their impact in the 2010–15 Parliament. The report found that electing chairs had helped select committees to grow in stature and be more effective:
Every chair we spoke to told us that, since the introduction of elections for committee chairs, they had felt greater confidence and legitimacy in undertaking committee work because they knew they had the support of their peers rather than pure political patronage.
33.The positive impact of elected chairs for parliamentary committees has led some to suggest that local authority scrutiny chairs should also be elected by their peers. Under such a system scrutiny chairs, regardless of whether they come from the majority party or the opposition, are more likely to have the requisite skills and enthusiasm for scrutiny by virtue of the election process. Electing chairs would also dispel the notion that being appointed scrutiny chair is a consolation prize for members not appointed to the cabinet. The CfPS argue that:
such a process would encourage those seeking nomination and election as chairs to set out clearly how they would carry out their role; it would also mean that they would be held to account by their peers on their ability to do so. The legitimacy and credibility that would come from this election could also embolden chairs to act more independently
34.When we asked the Minister about the prospect of electing scrutiny chairs, he was concerned that doing so could actually increase political pressures, but stated that “The important thing is that we have the right person chairing a scrutiny committee with the requisite skills, knowledge and acumen to take on the functions and achieve the outcomes that the scrutiny committee needs to achieve.”
35.We believe that there is great merit in exploring ways of enhancing the independence and legitimacy of scrutiny chairs such as a secret ballot of non-executive councillors. However, we are wary of proposing that it be imposed upon authorities by government. We therefore recommend that DCLG works with the LGA and CfPS to identify willing councils to take part in a pilot scheme where the impact of elected chairs on scrutiny’s effectiveness can be monitored and its merits considered.
15 Nottingham City Council Overview and Scrutiny Committee () para 1.3
19 Institute of Local Government Studies, The University of Birmingham () page 6
25 Centre for Public Scrutiny () paras 130–132
31 Erewash Labour Group () page 1
33 Newcastle City Council () para 10
35 Institute for Government, Select Committees under Scrutiny: The impact of parliamentary committee inquiries on government (June 2015), page 34
36 Centre for Public Scrutiny () para 133
14 December 2017