Examination of Witnesses (Questions 20
THURSDAY 17 JUNE 1999
20. What is the point in area committees given
(Mr Whetnall) It depends how tight the
restrictions are drawn.
21. That is true. What is the point of them
(Mr Whetnall) I assume part of the strategy
is to allow some councillors to enhance their representative role
and to construct decision making processes which are listening
to the particular areas about what they want and where they are
22. Could I ask two questions quite unrelated.
The first, I am afraid, is rather a point dressed up as a question.
Mr Whetnall referred to the difficulty of framing the regulations
to take account of the variety of responses that are being received.
To put it in the form of a question, does he anticipate, not knowing
when we are going to be seeing the real regulations, that draft
regulations will be available to Parliament at the same time as
considering the draft Bill? As I say, that is a point dressed
up as a question. My second quite unrelated question is with regard
to authorities which have no overall political control. I wonder
if we could hear a little of the thinking as to how those authorities
(Mr Whetnall) I do not want to do all
the talking. May I respond to the first part of that which is
a point on which all I want to say is I can see why that would
be very helpful and we will do our best to make some progress
(Mr Hewitt) On the question of authorities without
overall control, I suspect there is probably a number of arrangements
which could arise locally and they will be determined locally.
One possibility would be, as happens in some cases, that some
sort of formal coalition might be created and that would then
form the executive and very much act, if you like, as the majority
group who will need to determine their own arrangements for whether
they are going to take certain posts within that coalition. Clearly
that is a possibility. Another one would be perhaps the largest
party attempting to run as an executive alone. The other possibility
would be a cabinet, all presuming a cabinet model, which was formed
on a politically balanced arrangement. What the Bill does is to
take away the requirement for the cabinet, any cabinet, to be
politically balanced. It does not say that if local authorities
wish to adopt a cabinet which is politically balanced they cannot.
In terms of what that means for the culture and the way that a
local authority would operate, I think the minister would wish
to see in all cases authorities adopting arrangements which provide
more streamlined decision taking and some clearly identifiable
decision takers. Those features could and would be features of
any arrangements, such as those I have described, in an authority
without a majority group. Ministers believe that these models
can operate in those authorities just as they can in, if you like,
a simpler scenario of an authority with a majority grouping.
23. We have had an interesting exchange around
the area committees so far but I just want to come back with one
final question on the area committees. As the Bill is currently
drafted it would appear to those who attempt to construct area
based systems of governance in their areas that they would have
to exclude from those committees executive members in so far as
those committees are taking planning decisions or possibly more
general. I would be grateful to know whether that is the case,
whether that is the interpretation that the Department currently
places on it, and if not what interpretation you do place on it?
Secondly, would it be correct to draw from the legislation as
drafted at the moment that those who serve on overview and scrutiny
committees might similarly be excluded from membership of area
committees taking the decisions? I would be interested to know
whether or not that is the reading that can be put into the Bill
at the moment. Certainly I know that some local authorities are
concerned that may be the construction that can be placed on that.
My second and unrelated question really is about the role of members
of the executive in any of the models where there is also perhaps
an advisory or other form of area based structure as well, as
to whether or not those members who are on the executive, because
they will be excluded from taking planning decisions, will effectively
lose the opportunity to discharge their representation on behalf
of the local division or ward that they have been elected to serve
and there might be circumstances where the division at council
level or a ward in fact has all its members on the executive.
In that circumstance the ward would go unrepresented in planning
decisions in terms of votes being cast. I would be interested
to know how these structures allow some flexibility to address
those sorts of issues where electors may go unrepresented in important
decision making processes?
(Mr Hewitt) There is a number of ways
in which functions of an authority under these forms of constitution
could be discharged. Some will be discharged by an executive of
whatever description. I am just talking about the Bill as it stands
as a preamble to your question in a way. Others will be discharged
through section 101 arrangements on normal committees and sub
committees which authorities operate under now. I guess others
would be performed by individual members of the executive and
so on in various ways in which the executive would take those
decisions. Other matters would be for the full council. I do not
think that the Bill as it stands, and I stand to be corrected,
stipulates that a decision which is being taken under the politically
balanced section 101 framework is to be constructed without members
of the executive present.
24. Where they are discharging their quasi judicial
role, and it could be an area committee doing that in terms of
discharging of planning functions, would it not be the case that
in those circumstances they would have to stand aside from the
(Mr Whetnall) It is a difficult question
because, as it were, it is twin-headed. One is: can the council
ensure the composition of its planning committee is drawn on the
whole membership of the council or are executive members excluded
from that? The second is: if you had a combination of decision
making area committees, which is what I said we need to look at
because the consultation responses have raised it, and assuming
that those were not generally composed of executive members, how
would the executive members feed in their constituency interests?
I am inclined not to attempt an impromptu answer to that because
it is quite a complex chain of reasoning.
Mr Burstow: That is a great pity.
25. I do not see anything in the draft Bill
which excludes executive councillors being representational in
their role or their function. What perhaps might be more important
to tackle, not necessarily on the face of the Bill but perhaps
in regulation, would be keeping the executive councillors free
from the scrutiny role and excluding them from that part of the
process because that would be defeating the object of the exercise
of separation of powers. Perhaps you could comment on that. The
second issue that I think is quite important, and I think is posed
by the separating out of these things, is it does seem to me that
at the district council level once you set up the executive then
what actually remains in the council more or less is the regulatory
stuff of the authority and in particular the council is going
to be seen by most members of the public as being effectively
a planning council and yet planning itself is a very important
strategic function and executive councils may wish to influence
and have an impact on the planning process. There are problems
with that and I can see conflicts of interest arising. Maybe you
can comment on that and the way in which local authorities may
well continue to have an effective strategic function through
their executive and have a relationship with the planning function
of the council which has almost become arms' length from them.
(Mr Whetnall) The first part of the question
is about the rationale.
26. The rationale of the role.
(Mr Whetnall) Executive members would
not operate as a part of overview and scrutiny committees, although
they would no doubt have a very full role in giving accounts of
their actions and consulting on their proposals if that is what
the council structure is. I think that it is a theme of the Bill
that generally they would not be members. I think the second part
of the question on planning is quite complex given that, in a
planning context when you are actually making decisions about
particular applications, the rules on bias and interest already
cut in on the extent to which you ought to play a part in proceedings
by which you are directly affected and that is an additional complexity.
There are complexities around the bringing of influence to bear
when technically you should stand aside from the decision. Again,
I think some quite detailed analysis of that would be needed.
If the proposition was that the executive members should be able
to play a part given that they might have planning functions in
a strategic sense, I think that is a bit of analysis that we will
need to carry through.
27. It is a very key point that Lord Bassam
raises. The point that you make about declaring interests and
propriety apply in the widest sense to planning but particularly
to development controls. You cannot say that in decisions about
a strategic plan, whether it is an input to a development plan
produced by another authority or unitary development plan, they
are key items of policy that revolve around decisions about whether
they wish it to be a retail centre or they wish it to be attractive
to industry. The idea that the executive would be totally divorced
from that is beyond the scope of reality, is it not?
(Mr Whetnall) I do not think that is
the idea. If I may talk to page 29, the illustration there on
planning decisions, it is not assumed that the executive should
be excluded from the strategic aspect of the function.
Sir Paul Beresford
28. If I can come back to Mr Hewitt's answer.
Mr Hewitt was talking about the streamlining of council decision
making. Many of the local authorities now, I would contend, are
clearly efficient and are clearly streamlined, many of them use
an unofficial cabinet system but everything progresses through
the committees and even if it is not referred on from the committee
system to the full council because it has been delegated to the
committee decisions can be quite fast and can be quite streamlined
and can be agreed quite quickly. The present system has an advantage
of an openness which some aspects of some of the models do not
seem to have. I am showing my age if I talk about Tammanny Hall
and perhaps I may mention Preston which has had a couple of rather
difficult times under the present system. I am concerned that
the scrutiny committees, either because there is huge political
control of that particular council or because of the speed and
lack of transparency of documentation being passed down to the
scrutiny committee, will not be able to give fair and just scrutiny
of the decision making. In other words, I think there is a bigger
opportunity for more difficulties than in the present system.
Why can some of the present systems not be adopted and adapted
to answer the difficulties?
(Mr Hewitt) The paper sets out a framework
which has the involvement of those outside the executive in the
formulation of policy of the council at a number of different
points in the process in a number of different ways. Much of the
policy framework and the budget will be for the whole council
and clearly that will involve all those who are not within the
executive. That might mean, returning to Dr Whitehead's earlier
point, the sorts of strategic plans which are created, for example,
in the community plans, various results arising from reviews of
best value, community safety plans, whatever. That sort of strategic
thinking will be signed off, agreed, by the full council and the
executive will be there to implement that agreed programme. Clearly
that process is largely initiated, led, by the executive but there
is full involvement of the rest of the council in determining
that policy. Furthermore, the scrutiny side of the authority may
also have quite an influence on the policy making through its
own recommendations through processes similar to these looking
at an issue and forming proposals for future policy or future
practice. One other observation, I think if there is a major issue
which arises locally, which has not been provided for within that
general framework, I think people are likely to know about it.
If it is so big that it will be well known, people will have views.
So there is great knowledge, shared knowledge of what is going
on, what the agenda is, what the executive is there to achieve
and what the policies are. I think, therefore, the framework rests
on an assumption of quite close working in a number of ways between
the executive and the overview and scrutiny committees and the
development of policy, offering advice and so on. There is a wide
ability there for people outside of the executive to firstly be
aware of what is going on and secondly to plug in their views
to influence the debate. The overview and scrutiny committees
will be meeting in public. I think ministers intend to create
a framework here which is open which does deliver some transparency
and which does not have a formal separation of powers which is,
if you like, us and them and where those outside of the executive
are in some way excluded from the process and the debate.
29. Is that not precisely the problem though
that because there is not a full separation of powers, there is
a confusion of roles inherent in the structure? The particular
issue I want to just take you up on briefly is the role of the
scrutiny committee, as you have said, in bringing forward policy
recommendations or policy amendment recommendations to the mayor
and the executive. Since the scrutiny committee will be a balanced
committee presumably it will represent, in terms of its policy
recommendations, or might represent the views of the majority
party, which will then automatically migrate to a policy initiative
by the majority group put forward at the council. That then gives
a fundamental difference say between the select committee system
in our two Houses here, where a select committee may recommend
policy change but the Government merely has to respond and may
say: "We are not interested in that". It does seem to
me a fundamental problem of policy migration therefore as a result
of this structure.
(Mr Hewitt) I think if the overview and
scrutiny committee brought forward some proposals on the issue,
the framework is envisaging that being set out in some form of
report with recommendations to which the executive would be expected
30. The council can also then adopt that.
(Mr Hewitt) The council could. The executive
might choose to respond in the negative or the affirmative in
the first place.
(Mr Hewitt) I am not entirely sure that
there is a great distinction between the two processes that you
Dr Whitehead: Maybe I am not explaining myself
Mr Gray: I wonder if I can interrupt. There
is a particular point which has come to me which is will the scrutiny
committee be whipped and to what degree do you envisage it being
whipped? If it is whipped by the majority party then presumably
things they say will be fairly acceptable to the council.
32. Yes. The point I am trying to get clear
is that the scrutiny committee, unlike the select committee position
in the two Houses of this Parliament, would have a direct or conceivably
have a direct relationship with a policy making function of the
council and almost inevitably, if you have a majority on the scrutiny
committee, unless you have a ban on whipping the scrutiny committee,
the scrutiny committee will not only make recommendations to the
mayor and executive who may of course simply say that is not a
good idea but there would be a migration of policy formation from
recommendations of the scrutiny committee to the council which
would then be binding on the mayor.
(Mr Whetnall) I think it is very difficult
to forecast how far whipping will happen. Again, I would hesitate
to say much about Parliamentary committees because you are the
experts, but they began by substantially functioning in as bipartisan
a way as they could, to the point of selecting the issues they
have concentrated on. It is part of the potential of this arrangement
that councillors begin to operate less as merely people whose
job it is to vote for the leading option. It is genuinely about
more open exploration of the adequacy and effectiveness of the
policy. One cannot say that it will happen but there is an opportunity
for it to happen.
33. The way it works here though is specifically
because the select committees are not whipped they have very robust
independence of mind. A select committee report might attack the
government even though the select committee's own majority party
is the government party. Therefore what we are saying here is
do you envisage the scrutiny committee being specifically and
unintentionally and outspokenly un-whipped backbenchers, as it
were, scrutinising executives or do you, as Dr Whitehead was describing,
envisage them simply being committees of the majority party, in
which case you are reducing their value quite a lot?
(Mr Whetnall) First of all, why are committees
here not whipped? The sort of arguments that the chairmen of committees
have put forward for why that does not happen is that they can
be more effective if they take a bipartisan approach. So it is
a choice rather than anything externally imposed. The same choice
will exist in councils. By and large legislation does not bite
into the behaviour of political parties as to whipping, and I
do not think it is proposed that this Bill should.
Mr Burstow: One of the arguments that has been
advanced for this Bill has been that it makes more transparent
and accountable the party political processes that go on beneath
the committee system. You have policy and resources committees,
or whatever they might call their particular authority, that meet
on an all party basis and in the language that is used to describe
the system in an unfaithful way rather stand for the decisions
of a majority party. The majority party has a meeting somewhere
else and takes all the decisions in advance. Surely the reality
is from the models that we have set out in the Bill that that
system will continue to operate because in many local authorities
where there is a strong group basis for taking decisions whether
or not the executive and scrutiny roles are separate, those who
sit on both sides of the fence will sit together in groups, and
those who sit on both sides of the fence will have a part to play
in selecting who will win the executive and those who sit on either
side of the fence will be taking part in making decisions that
ultimately will be rubber stamped by the executive. So in what
way are these three models really substantially different from
the existing committee system?
Sir Paul Beresford
34. Could I add just one thing that the other
additional thing to what you are saying, to which I agree, is
that the executive is essentially behind closed doors.
(Mr Whetnall) These arguments recur regularly
in discussions with local government. The argument offered by
the Widdecombe Committee for not applying its recommendation on
political balance to purely deliberative committees was that one
way or another people will meet to decide their political line,
whether in private or not. I can only point to the opportunity
that creates a greater presumption that the scrutiny process needs
to be effective, that is what the Bill tries to do and it may
or may not in the end be driven by a whipping process. I imagine
there will be more powerful temptations to do that on some issues
than others. But it does create an opportunity and it is what
people make of that opportunity that matters, rather than having
this written into the structure and the detail of regulations,
to develop a more thinking approach to policy formation.
35. I want to further explore some of these
points about transparency and accountability. The current system
with its committees seems to me to have both poacher and gamekeeper
contained within the decision making process. The draft Bill sets
out the potential for structure to have these two things separated
into executive and scrutiny. If you take executives as not being
part of the scrutiny process, while it is true that they may have
a part in a group context of selecting their scrutineers, that
does not underline the principle of the Bill which is to create
a more transparent questioning process, a more deliberative process
focusing on the rights and wrongs of a particular policy. That
is the logic of this piece of legislation, is it not?
(Mr Whetnall) I think you have put it
rather better than I did.
36. The second point surely is this, and perhaps
Members would want to consider this, I do not see anything in
the legislation which means that the executive function of the
council has to be taken behind closed doors. Explicitly it must
be the case, must it not, that the executive must meet in open
and be transparent in the way in which it takes its decisions?
(Mr Whetnall) Certainly there is material
on the importance of full public availability of reasons for decisions,
the factual and analytical material that supports them, the rationale
for them, so that the council can handle its affairs in such a
way that opens all the points of the policy making cycle. That
sort of transparency is an option, yes. There is a question of
whether the executive has the option of occasionally meeting in
private as it would if it were a party group. There is a discussion
of that in the paper and there is a discussion of whether the
availability of advice that officers feed into the process should
be something which there is a discretion to treat confidentially.
The paper comes down and the Government gives a steer in the direction
of openness on that. There is a distinction between what the council
can choose to do and what it may in circumstances do by way of
pre-decision or prior deliberation. That option is not fully closed
off. Indeed, if it were fully closed off I think it would be part
of the argument, as it has been on the many occasions that this
has been discussed, that the groups would find a way of meeting
out of the public eye to thrash our their position whatever the
formal position is.
37. Is there not a case almost for something
within the constitutional arrangements of the council, a formal
arrangement, whether it be the cabinet model or the elected mayor
model, which enble there to be private but formal constitutional
discussions, so long as it is known how and when these take place?
It is not clear to me whether you are trying to stop that or whether
you are actually saying you can do that but you do it informally.
(Mr Whetnall) I think if I can find the
38. I have been looking myself and I cannot
(Mr Whetnall) This is in the section
on page 37.
Chairman: I think 3.64.
39. Can I perhaps pick up on 3.64 because this
is an issue which the chief executive of my local authority drew
to my attention and expressed a concern on. I think it is an area
about which officers of local authorities are going to be quite
concerned, particularly in a situation where the executive function
is being discharged by an individual member on behalf of the authority.
One can envisage circumstances in which a decision is taken away
from the executive body itself by an individual member of the
executive and the process by which those decisions are recorded
and the onus that appears to be being placed upon officials could
give rise, I think, to considerable professional concern about
whether or not (a) the system itself is going to be exceedingly
cumbersome and (b) whether or not officers themselves are being
adequately protected from members who may well be taking decisions
but not necessarily then getting them properly recorded. I just
wonder if you can comment on how safeguards both ways will be
(Mr Whetnall) Can I just pinpoint the
sentence I was looking for which I think meets the point you raised,
the first sentence in paragraph 3.61: "The executive, which
would not be required to reflect the political balance of the
authority, must be able to determine its political view on an
issue and weigh that in private against the other relevant factors
in the decision."