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

Examination of Witnesses (Questions 40 - 59)




  40. I suppose the question I am asking is are you seeing that process as part of the constitutional working of the council or something which takes place around somebody's dining room table?

  (Mr Whetnall) I think there could be a provision, as I understand now there is in practice, at effectively single party meetings, for officers to be present and to offer advice. If that is what the council chose to incorporate in its model such private meetings would be given a formal rationale.

Dr Whitehead

  41. Is it not rather a quaint idea that factual advice and political advice are entirely separate?

  (Mr Whetnall) There is policy advice which is officials advising on which options appear to them to be preferable. That goes on all the time.

  42. You have got a little bullet point at the top there saying "political advice to the executive remains private".

  (Mr Whetnall) Yes. I do not think political advice means policy advice in that context. The discussion of officer advice in paragraph 3.63 about the publication of advice from officers is the relevant one. It is recognised that there are two sides to the issue and, indeed, there are chief executives who take opposed positions on that. The steer there is that the Government is inclined to make this information public alongside factual material. If I could return to Mr Burstow's point about the burden on the officer when a decision has been taken by an individual. The second sentence of 3.64 does put the onus, and I think it is necessarily the case, on the individual member who has taken the decision to ensure that the necessary record is created and is made available to the monitoring officer. I think all the existing pressures arising from the possibility of judicial review, the possibility of an ombudsman review for maladministration, will continue to support the proper recording of decisions and the reasons for decisions. It is part of the SOLACE response, the idea that a chief executive of the council should have the responsibility to ensure there is an effective system of recording of advice and recording of reasons for decisions. Even if that were not formalised in the Bill the pressures to have that material properly there on the record would include the fact that the ombudsman might well find maladministration where it was not there, and the courts might overturn the decision on judicial review if it was not effectively documented with public policy reasons as to why it had been taken.


  43. There have been a lot of questions asked about the division of responsibilities and references in the White Paper to legislation providing for those because the Bill does not actually provide for lots of those things. Is there not a case for the Bill to provide for the division of responsibilities?

  (Mr Whetnall) On the part of officers?

  44. No, on the part of members of the executive and the rest of the councillors.

  (Mr Whetnall) Following it all the way back to the opening of the line of questioning, I am not absolutely sure what is meant by "division of responsibilities". Is it under the American system that the elected mayor may appoint his political staff from outside membership of the council?

  45. Yes.

  (Mr Whetnall) If that is what it means, It is a fundamentally different system. By analogy with the Westminster model one could argue that it is not strictly necessary, to ensure effective separation of executive and scrutiny, that the members responsible for either should not also be jointly members of the same council with votes which count equally on the fundamental issues of budget setting and all the rest of it. I do not think that it necessarily follows that you need absolute separation for an executive and scrutinising wing to co-exist effectively on one council. It is after all what happens in the House of Commons.

  Chairman: Are Members happy to move on? Are there any other points on planning or scrutiny or can we move on to referenda?

Sir Paul Beresford

  46. Just a final one. If I could take us back to 3.64, will there be a legal definition of the word "decision", or is there one? How major or how minor will it be? One can foresee huge squabbles in a small district council over whether a decision was a decision or was not a decision.

  (Mr Whetnall) I think I would want to take legal advice on the need to define it. Surely it is the point at which the council commits resources or takes a step which has an impact on the outside world?

  47. However major or minor?

  (Mr Whetnall) Yes.

Lord Marlesford

  48. Can I follow up on this. In 3.63, I was trying to find where that is in the draft Bill, the conclusion now that the advice of an officer should be published.

  (Mr Whetnall) I think one of the things we still need to do to the Bill is to add some material showing how Part V(A) of the 1972 Act would work in the new circumstances. That needs to be worked through so that the rules on transparency are clear; it is not in the draft Bill at the moment.

  49. It would be quite helpful to have that before, if we are considering the Bill. It would be helpful to have that rather than waiting until the Bill is published in its legislative form.

  (Mr Whetnall) Yes, it does not exist in draft form at the moment but we note the observation.

Dr Whitehead

  50. The provisions for referendums require them to be established on the basis of a five per cent petition effectively if a council itself does not declare a referendum for the establishment of a mayor. Two questions. Firstly, how do the arrangements for a referendum impact upon other arrangements the council may or may not have reached for getting into place scrutiny and so on, if the council itself does not trigger the referendum? Secondly, if one of the purposes of the mayor and the referendum is to enhance public interest in the process of local government and increase their involvement with it, should there not be some sort of turnout threshold in the referendum itself to validate it and thereby bind the council in its decision making processes?

  (Mr Hewitt) The question is what happens to, as I understand it, any arrangements the council had designed before it was forced to do something else.

  51. Or indeed is designing now.

  (Mr Hewitt) The presumption on any of the referendums in any of the circumstances in the Bill is that the referendum will take place on the basis of a fairly detailed set of proposals and that will be quite a lot of work to work up. After all you are talking about broadly what is the nature of the scheme, delegations being required to what are going to be executive functions and which are not, and what is going to be the relationship in terms of checks and balances, if you like, between the executive and the full council and the Standing Orders and all the rest of it which will underpin all that. So there is quite a lot of work to be done there but nevertheless I think ministers have taken a view that ought to be done for there to be a proper process in the referendum.

  52. With respect, if the council has done nothing, i.e. it is dragging its feet on new procedures, and then a group of citizens get together a five per cent petition demanding a referendum and win that, there will then be a requirement for that local authority to have a mayor whilst the local authority has done nothing to establish any procedures whereby that will make it work?

  (Mr Hewitt) I think the framework is set up. The idea is that the authority would then be under a duty, having taken receipt of such a petition, to then work up those proposals so that the referendum can then take place. I think the ordering would be slightly different from what you are suggesting.

  53. If your referendum was triggered the local authority would have to do the work and then hold a referendum?

  (Mr Hewitt) Yes.

  54. Is there a timescale set out for that or would there be a timescale within which that must be held?

  (Mr Hewitt) To date the ministers have been concentrating very much on what the shape of the primary legislation should be, understandably. There are provisions within the Bill that allow for regulations to be made on referendums and I am sure this is one of the things which will be dealt with during that process.

  55. What about threshold?

  (Mr Hewitt) Sorry?

  56. I mentioned the idea that logically one might decide to pursue the idea of a threshold turn out to validate a referendum.

  (Mr Hewitt) It has been suggested by some authorities in response to the Bill and clearly ministers will need to take a view on that in the near future.
  (Mr Whetnall) It has been done for some national referendums, has it not, but not for others? I can see arguments both ways.


  57. If the referendum is triggered, am I right in reading that then the council has to work up proposals through an elected mayor. It has not got an option to work up any of the other proposals?

  (Mr Hewitt) No.
  (Mr Whetnall) That is right. The trigger requires the council to conduct the referendum on the option for an elected mayor which is the thing the petition is envisaged to trigger. I think the role of the Secretary of State's regulations will be to see that the question is fairly put and all the rest of it.

  58. It might end up imposing something not totally suitable perhaps for a particular locality.

  (Mr Whetnall) I think there is nothing to stop the council, if it profoundly disagrees with the petitioners, from putting the counter argument that it would prefer a different model, even though it is arranging a referendum that has been triggered on the elected mayor model.

Mr Burstow

  59. Can I just follow up that point. Are you saying that the local authority itself would be allowed to use resources to campaign for a different position?

  (Mr Whetnall) That is a slightly different argument, the application of public resources to campaign for the advocacy of an alternative model.

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