Draft Local Government (Organisation and Standards) Bill Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



  20. What is the point in area committees given those restrictions?

  (Mr Whetnall) It depends how tight the restrictions are drawn.

  21. That is true. What is the point of them in general?

  (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 going.

Baroness Hamwee

  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 might operate?

  (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 towards it.
  (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.

Mr Burstow

  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 decision?

  (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.

Lord Bassam

  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.

Dr Whitehead

  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 to respond.

  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.

  31. Yes.

  (Mr Hewitt) I am not entirely sure that there is a great distinction between the two processes that you are describing.

  Dr Whitehead: Maybe I am not explaining myself very well.

  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.

Dr Whitehead

  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.

Mr Gray

  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.

Lord Bassam

  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 paragraph.

  38. I have been looking myself and I cannot find it.

  (Mr Whetnall) This is in the section on page 37.

  Chairman: I think 3.64.

Mr Burstow

  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 built in?

  (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."

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