36.Fostering the positive organisational culture discussed in the previous chapter can also determine another important aspect of effective scrutiny: access to information. When we asked Jacqui McKinlay whether scrutiny committees are able to access the information they need, she told us that:
The very determined ones can. I met one last week that had put an FOI request in to its own organisation in order to get the information. You should not have to do that, but there are ways there. There needs to be persuasion and influence in order to say, “This is an issue around flooding”, or whatever it might be, “that is really important”.
37.Scrutiny committees that are seeking information should never need to be ‘determined’ to view information held by its own authority, and there is no justification for a committee having to resort to using Freedom of Information powers to access the information that it needs, especially from its own organisation. There are too many examples of councils being uncooperative and obstructive. For example a submission from a spouse of a scrutiny chair argues that it can seem to not be in council officers’ interests to divulge information freely:
There is an element of ‘siloism’ within the Authority whereby Directors or Heads of Service do not release, explain or otherwise divulge their operational objectives, strategies or tactics for fear of being challenged. This makes it almost impossible to scrutinise, for after all how can one scrutinise what you don’t know? There is also a reluctance by officers to divulge operational (in)efficiencies in case it shows that there is an excess of staff ratios for particular tasks. It leads to obfuscation of such measures in order to protect their fiefdom.
38.Similarly, the Minister told us of the example of an authority to which he used to belong and how culture can affect councillors’ ability to scrutinise:
When I was in opposition on the district authority of which I was a member, the controlling group at the time had this unfortunate situation where they used to bring out their budget at the budget-setting council in March. They used to bring it out through the cabinet at 4 o’clock. That mini-meeting used to finish at 5 and then we used to go straight into the full council at 6 to approve the budget. Where you have that type of culture, even if you have resource and access to information, you are not going to get the outcomes that are in people’s best interests.
39.Professor Copus highlighted to us another challenge for scrutiny committees seeking to understand an issue:
I often think, “If someone is willing to give you something you have just asked for, what are they hiding? Why are they being overly enthusiastic?” It is because it is not causing them any problems. The information that scrutiny really needs is the stuff that people are a little bit more reluctant to hand over, whether that is the council itself or an external body. I hear quite often … of councillors using FOIs against their own council for the want of any other way. It is a sign of an immense frustration among members that they have to do that.
40.A particular challenge for councillors wishing to access information in order to scrutinise an issue is related to commercial confidentiality. Jacqui McKinlay told us that “Every councillor I meet will talk about the barrier of commercial confidentiality. They will talk about, “We cannot give that information” and a lack of transparency.” Local authorities are required by statute to publish all information relating to decisions taken and service delivery, however there are certain categories of information that they can withhold. For example information relating to an individual’s circumstances is considered exempt, as is information relating to the financial or business affairs of any particular person - including the authority holding that information. As a consequence, many councils argue that publicly releasing specific details of a contract or a procurement framework such as cost or the details of rival bidders for a contract are withheld on the basis that such information is commercially sensitive and exempt from the access to information rules. Professor Copus told us that:
Commercial confidentiality is always another cloak behind which people who do not want to provide information can hide. There is a need for a much tighter definition of what is acceptable as an exemption for commercial confidentiality. It is not just not wanting to tell somebody what they have asked you. There needs to be a much tighter definition for scrutiny purposes.
41.Whilst we acknowledge that it is not always in the public interest for local authorities to publish all information and make it available to the public, we cannot see a justification for withholding such information from councillors. Councillors have regular access to exempt or confidential information, often distinguished on agendas by use of different colour paper. As Cllr Marianne Overton told us, “Councils are used to dealing with confidential information, and we recognise if it is on pink paper it is confidential. There is no question about it. There should not be any problem with sharing information with elected members. We are already under rules.” Councils should be reminded that there should always be an assumption of transparency wherever possible, and that councillors scrutinising services need access to all financial and performance information held by the authority.
42.Legislation dictates what information should and should not be released to councillors. Regulations in 2012 clarified the position and granted additional access rights to members of overview and scrutiny committees. The Regulations state that scrutiny members can access any confidential material if they can demonstrate a ‘need to know’ in that it relates to any action or decision that that member is reviewing or scrutinising, or on any subject included on a scrutiny work programme. We do not believe that there should be any restrictions on scrutiny members’ access to information based on commercial sensitivity issues. Limiting rights of access to items already under consideration for scrutiny limits committees’ ability to identify issues that might warrant further investigation in future, and reinforces scrutiny’s subservience to the executive. Current legislation effectively requires scrutiny councillors to establish that they have a ‘need to know’ in order to access confidential or exempt information, with many councils interpreting this as not automatically including scrutiny committees. We believe that scrutiny committees should be seen as having an automatic need to know, and that the Government should make this clear through revised guidance.
43.Council officers are the primary source of information for many committees, however if they do not present the full picture, then those committees can get very limited assurances about the service they are scrutinising. Whilst scrutiny should be able have access to whatever information it needs, this also serves to emphasise the importance of scrutiny committees seeking to use data from multiple sources and challenge that which they are told. Professor Copus described to us how effective scrutiny should operate:
In some councils … they are too reliant on officers and too reliant on a single source of advice. In too many councils the flexibility that scrutiny has over the committee system is not used … sometimes, when you examine scrutiny agendas and scrutiny reports, and observe scrutiny meetings, what you see is a committee, and a one-off event that leads to not very much. In other councils, those that have really supported and understood scrutiny, you get a process … Where you get scrutiny viewed as not a single event but a process, then the outcomes are much more effective, and there is a greater access to a wider range. What scrutiny should be doing is not taking one source of evidence and going, “That is from the officers. Great. That is okay. We agree the recommendations”. They should be looking at conflicting evidence. There is always conflicting evidence with big policy issues. They need to sift that evidence.
44.Cllr Marianne Overton, Leader of the Independent Group of the LGA, agreed that effective committees seek to triangulate data to build a fuller picture: “That is part of what scrutiny is about … one of the issues about scrutiny is that the whole point is that you can call all kinds of different witnesses … You are not just sitting, looking at the papers that you have been fed.” We are concerned that too many committees are overly reliant upon the testimonies of council officers, and that they do not make wider use of external witnesses. Very few councils have the resources to provide independent support to both the executive and scrutiny, and in light of the uneven balance between the two functions discussed earlier, most resources are prioritised upon the executive. This means that officers working in a service department are supporting executive members to develop and implement decisions, and the same officers are then supporting scrutiny committees as they seek to understand the impact of decisions and performance of departments. Whilst departmental officers may be able to distinguish the two roles and cater their support accordingly, we are concerned that too few councils are hearing alternative perspectives. However, we acknowledge that councils are operating on reduced budgets and that making use of specialist advisors can come at too high a cost for many committees. The LGA explains that:
Employing specialist external advice as part of oversight and scrutiny arrangements is not common … Where councils do bring in external experts, it is because specific knowledge and skills are needed that are not available in house. Procuring specialist advice comes at a cost and, given the pressures on council budgets, not all committees have funding available to increase their standard staffing compliment, commission professional advice, secure external witnesses or even refresh recruitment of co-optees.
45.We are disappointed that committees do not make greater use of expert witnesses. At the informal workshop event hosted by the Committee, we spoke with councillors and officers on their use of experts such as local academics. One attendee told us that it could sometimes be possible to engage a local academic at the start of an inquiry to help members understand an issue, but it was seldom possible to sustain this engagement throughout the life of an inquiry. We note that few committees make regular use of external experts and call on councils to seek to engage local academics, and encourage universities to play a greater role in local scrutiny.
46.While recognising the constraints that committees operate under, we believe that it is possible to bring in a wider range of perspectives for limited expenditure, and that the benefits of doing so are significant. We note, for example, the case study presented by the LGA of Brighton & Hove City Council’s scrutiny panel on equality for the transgender community:
The panel’s review was underpinned by an effective and sensitive engagement strategy enabling the views of a hard to reach community to inform recommendations for action. The panel worked in partnership with the Council’s Communities team, the city’s LGBT Health Improvement Partnership, and a local charity which supported transgender people, co-opting experts to help better inform the process, and directly engaging through community events and specially designed workshops. A significant amount of time was devoted to the consultation process which was pivotal in helping to build up trust. The Panel’s findings were well received by the transgender community and partners, with all 37 recommendations adopted by the Cabinet.
47.Bringing in the perspectives of service users undoubtedly leads to more effective scrutiny, both in developing policy such as the example from Brighton & Hove and in monitoring services. Officers from the London Borough of Hackney described an example of effective scrutiny in their monitoring of services for disabled children in the borough. Rather than only using the testimony of the council officers delivering the service, “A major part of the evidence base for this review was the views of parents and carers of disabled children, as well as disabled children and young people themselves about the services they receive and the barriers they face in accessing current services.” We commend such examples of committees engaging with service users when forming their understanding of a given subject, and encourage scrutiny committees across the country to consider how the information they receive from officers can be complemented and contrasted by the views and experiences of service users.
39 Anonymous submission ()
45 The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 ()
48 Local Government Association () paras 10.1–10.3
49 Local Government Association () paras 13.8 – 13.10
50 Overview and Scrutiny team, London Borough of Hackney () page 9
14 December 2017