Select Committee on Environment, Transport and Regional Affairs Minutes of Evidence



Examination of witnesses (Questions 293 - 322)

TUESDAY 20 MARCH 2001

MR MIKE KENDALL, JEAN GELDART and KATE FOLEY

Chairman

  293. Good morning. Can I welcome you to the Committee, to the final day's session on the environment and local authority governance? Could I ask you to identify yourselves for the record?
  (Mr Kendall) Mike Kendall. I am chair of the Democratic Services Committee of the ACSS, the Association of Council Secretaries and Solicitors.
  (Kate Foley) I am Kate Foley. I am a national officer in the local government section of Unison.
  (Jean Geldart) Jean Geldart. I am chair of the Unison Local Government Service Group.

  294. Does anyone want to say anything by way of introduction or are you happy for us to go straight to questions on your evidence? Straight to questions?
  (Mr Kendall) Thank you, yes.

  Chairman: Can I emphasise to the two groups that if you agree we do not need you to say it but, if you disagree, please chip in quickly.

Mr Benn

  295. Mr Kendall, could you tell us what you see as the key problems involved in local authorities being required to publish forward plans on key decisions?
  (Mr Kendall) First of all, the potential administrative burden of identifying throughout departments of the council what matters are likely to be decided over a forthcoming four month period seems to me to be potentially quite significant. Secondly, the requirement in the regulations for inclusion in a forward plan of a list of documents already given to members of the executive in respect of those matters which will be decided seems to me potentially to be capable of undermining the decision making process. Members of any political party, whoever is in control, will find it very difficult to have disclosed a list of all the documents that they have already received that will relate to matters coming up for decision in a forthcoming four month period.

  296. Taking the first part of your answer, which is to plan four months ahead, somebody might say to you, "You are running a very large operation here. Do you mean to tell me that you do not currently have a reasonable idea what you are going to be doing in the next four months as a local authority?"
  (Mr Kendall) Certainly in terms of the key strategies and policies, I am sure we could identify those four months in advance without any difficulty. Indeed, my own authority which has been running a pilot scheme for 12 months has done precisely that by identifying a management of business programme to ensure that all the relevant key strategies and policies are submitted to the full meeting of the council in accordance with timetables set by various government departments. At the highest level, there is no difficulty. The trick and the difficulty will be in the rather lower level decisions that come within the definition of key decisions. In discussion with officials at DETR, those are capable of being quite small, relatively small, decisions, such as traffic management issues. I work for a county council. The view expressed to me across the table by DETR officials was that ministers would expect to see relatively minor matters like that within the definition of a key decision because it could affect people living or working in two or more divisions or wards of the county and therefore they would expect it to be identified four months in advance. That, in practical terms, could be quite difficult. it depends where you pitch the definition of decisions.

  297. As you will be aware, the government has twice revised the chapter seven guidance. Do I take it from the answer you have just given that you are still unhappy about the definition of key decisions?
  (Mr Kendall) I am happy and the Association has said in its evidence that it is happy that local authorities at least have some discretion in how to apply those definitions. Provided it can keep that discretion, I think there is some possibility that local government will be able to see its way through that. If the regulations become even more prescriptive than they are at the moment, I fear those definitions will have to be interpreted very narrowly.

  298. Do you accept that the reasoning behind this particular development was that some local authorities, in turning to the new systems, were taking decisions in secret and therefore the public was concerned and Members of the House were concerned that the system was not as open as it had been previously?
  (Mr Kendall) I have to confess to some reluctance to accepting that principle. I know that it is probably the generally held view. It seems to me that democracy does not require decisions to be taken in public. It requires those taking decisions which might be in private to be publicly accountable for them. If that is right, I do not see that there is a difficulty in taking decisions in private. The old committee system required a minimum of three clear days' notice of decisions to be taken. This scheme would require, depending on how you define key decisions, a far greater lead in and I am not sure it is necessary or desirable.

  Mr Benn: I have to say that the public in general would think that having the chance to see the decision as it is taken as a very important part of accountability.

Mr Olner

  299. What role is the media going to play on these forward plans?
  (Mr Kendall) I am sure the media will be delighted to see in advance a programme of the things which members of the executive or the executive collectively are going to discuss in a four month period.

  300. The media will equally be delighted to try and change it.
  (Mr Kendall) I suspect that is perfectly fair, yes.

Chairman

  301. What happens if political control changes? Presumably you can then start with a clean sheet. If you win a bi-election and that changes control of the council, do you have to wait four months?
  (Mr Kendall) No, you do not. There is no requirement to wait four months before you make a decision. The requirement is to have a minimum of three days. Nevertheless, local authorities will want to comply with the spirit of the four month programme if that is the government's wish and to include in there whatever comes within the definition of key decisions. If there is a change of power, I suspect in practice that a new executive will want to review the four month forward plan and revise it and republish it.

Mr Olner

  302. They will not want to change the traffic management decisions, will they? Given the very importance of the capital investments that local authorities want to make, they are rather different and do not depend on political power.
  (Mr Kendall) I can think of some traffic management schemes that will certainly change if political power changes.

Mr Benn

  303. That is why they are key decisions. In your evidence, you were very negative about the power that scrutiny committees can be given to refer matters to full council. Why is that?
  (Mr Kendall) The generally held view within the Association is that that will undermine one of the principles of this legislation, which is accountability of the executive. It seems to the Association that the better way would have been for recommendations of scrutiny committees to have been referred directly to the executive and for the executive to publish its response. That is what accountability is all about. In this system, if a scrutiny committee makes a recommendation direct to the council, it seems to the Association that there is a danger that the public will be very confused as to who actually is responsible for the final decision.

  304. Will not that be the council?
  (Mr Kendall) No. That is entirely the point. If the matter is referred to the full council by a scrutiny committee, the council, if it relates to an executive function, will only make a recommendation to the executive as to how it is to respond. It will not be the council which makes the decision.

  305. Does it not give the council a real role in the process which would not otherwise be there if you did not give scrutiny committees that power? That is one of the arguments that has been made. Instead of the council simply being a rubber stamping exercise at the end of the process, which in fairness it tended to be under the old committee system, the council has a real role, having listened to what scrutiny has to say, to say to the executive, "We think you ought to do something different."
  (Mr Kendall) I think it is entirely fair to say that the full council must have a role in holding the executive to account. I question however whether the power of the scrutiny committee to refer a matter to the council before the executive takes the decision is the best way to do that. In my authority, for example, members of the executive are held to account by having to report at each council meeting on matters which they have been dealing with in the preceding period and to answer questions without notice. That is quite challenging and it is widely reported and held to be a very good examination of members of the executive. If you have a system where scrutiny committees make recommendations direct to council and then the council makes a recommendation to the executive and then the executive takes a decision, I think there will be confusion in the minds of the public as to who is actually responsible and it will certainly do nothing for the efficiency of the decision making process.

Mr Blunt

  306. Some commentators believe that the new structures give local authorities an opportunity to re-establish full council as the sovereign body of the authority. You said in your evidence that it is actually going to introduce an unnecessary administrative burden and you said to us it would lead to a far greater lead in time that was neither necessary nor desirable. I assume you were referring to the powers of scrutiny committees to put things back to full council?
  (Mr Kendall) Yes.

  307. Why do you believe that it is misconceived for the full council to be re-established as the sovereign basis of the council?
  (Mr Kendall) I do accept that the council should take decisions on the most important policy issues facing a particular authority. What is difficult is to accept the very prescriptive list requiring each authority to submit to its full council the plans and strategies on the prescribed list. That may be a situation which would not allow local authorities to decide what is most important to them. May I give you an example? Included in the list prescribed by central government is a requirement to submit the annual library plan to the council. We have done that in our pilot and members are most unimpressed. There is no political difficulty over the annual library plan in my authority. Members were asking me, "Why does this have to go to full council? Why can it not be decided at a lower level commensurate with the issues concerned?" The point which the Association is making is that authorities should be given the discretion to decide themselves from a list offered by ministers as to which of those decisions should be left to the full council. I do not have any difficulty with the principle that you are suggesting, that the council is the full sovereign body.

  308. Can I move on to member/officer relationships? What impact do you think the introduction of these executive arrangements is going to have on member/officer relationships?
  (Mr Kendall) First of all, I think potentially it could cause considerable tension between members of the executive and chief officers and the chief executive, particularly, as will be the case in many authorities, if Cabinet portfolios are organised to mirror entirely departmental structures. If there is a one on one relationship, in many authorities there will be a temptation by members of the executive to run departments. I think tension between executive members and chief officers will arise. Secondly, a point which has been made to the sub-committee before by another witness: the requirements of the decision making process and the matters that have to be disclosed seem to me potentially to raise difficulties between members of the executive who may not want them disclosing and officers, particularly the monitoring officer.

  309. Can you elaborate?
  (Mr Kendall) The example I gave previously under the access to information regulations requires forward plans to include lists of documents submitted to members of the executive. If I publish a plan on 1 April to say that at the end of July the executive member for social services is going to make a decision in respect of a residential home, on 1 April that forward plan must include a list of documents already submitted on 1 April in respect of that issue. There is an exclusion in respect of matters which have been submitted in draft and there will be some pressure, I think, from executive members to restrict the list of matters disclosed in that document on 1 April, because they will be open to inspection by other members of the council, particularly minority party members. There will be a tension, I believe, between executive members and senior officers, particularly the monitoring officer responsible for access to information. The last point is about support to the Cabinet. My experience is that members of the Cabinet have been totally overwhelmed with the amount of business simply because the culture of the officer organisation has not changed. Officers have continued to submit reports in the same rather elaborate form that they used to in committee structures. That needs a complete revision of thinking. Members of the executive simply cannot handle that amount of business. They are after all replacing most committees which authorities previously had. Therefore, it requires a new way of looking at business and that leads to a certain amount of tension until that change of culture is achieved. Those are the principal areas where there could be difficulty.

  310. You mentioned the monitoring officer. How do you see the role of the monitoring officer changing over time?
  (Mr Kendall) The role of the monitoring officer in simple terms will become far more difficult. Decisions are going to be taken by individual Cabinet members and members of the executive. That means tracing through what papers the members of the executive have actually had and making sure they are included and listed in the forward plan and that the list of background papers is within the definition. The new access to information regulations potentially make the monitoring officer's job considerably more difficult. The second area is in the disputes procedure. The monitoring officer will have to advise if proposed decisions by the executive amount to a departure or variation from the policy framework, from the large policies already approved by the council. In practice, those could be extremely difficult issues and politically sensitive ones.

Mr Olner

  311. Do you think the new structures will lead to more or less delegation of decisions to officers?
  (Mr Kendall) I am sure they will increase delegation to officers. That is one of the ways in which members of the executive will reduce their workload. I see in the guidance that that is a process which is advocated by central government.

  312. What is going to happen to those councillors who are not on the executive and who would object to more delegation being given to non-elected officers?
  (Mr Kendall) The challenge for local government will be to find a way of ensuring that members outside the executive are aware of what issues are being considered by officers. That will particularly affect local members and local issues.

  313. You think officers' decisions that they have made under delegation will be subject to very close scrutiny of scrutiny committees?
  (Mr Kendall) I am sure that in practice they will not because there will be too many being taken by officers. In practice, I think that will not be possible, but I am sure that members outside the executive will want that to happen in some way or will at least want a regular source of information as to the sorts of things being decided by chief officers.

Chairman

  314. What happens with delegation? My experience of councils is that lots of things are delegated to officers. As soon as the officer has a sense that it is a politically sensitive issue, he will consult, in the past with the leader of the council or the chairman of the committee, and now presumably with the Cabinet individual. Who has the responsibility? Is it the officer to whom it has been delegated or is it back to the Cabinet member who he has tactfully consulted about it?
  (Mr Kendall) If the chief officer proceeds after consultation with the member of the executive to take the decision, the chief officer is responsible. If the chief officer however feels that the issue is so politically sensitive, he or she may decline to exercise delegated powers and ask the member of the executive to take the decision or indeed the Cabinet itself. It depends on the facts of the situation.

Mr Olner

  315. Turning to Unison, do you think in this rush for Cabinet systems and removal of committees that industrial relations are going to suffer and that human resources are now being pushed into the background?
  (Jean Geldart) Yes. Local authorities have had a formal structure for taking on board industrial relations issues. There is nothing prescribed in the legislation. Our fear, which is borne out anecdotally by the sort of proposals which are currently being consulted on around the country, is that industrial relations is not being considered as an issue. Frequently, authorities are not even looking, for example, to nominate a lead member in the way that there used to be a personnel committee or a chair in a personnel committee. They are describing staffing matters as being the responsibility of the whole Cabinet and in practice that means nobody's responsibility. There is not the same formal channel that used to be available through the local joint committee and the personnel committee for trade unions to have some sort of formal consultation process.

  316. Some local authorities have had experimental arrangements before legislation comes in. What evidence have you picked up from those authorities that are taking part in this experiment and have gone down this route that industrial relations have suffered?
  (Jean Geldart) Funnily enough, I work for one of them. I would not like to use the authority that I work for as being typical, as no authority is typical. With the ones that went ahead, some have incorporated a formal industrial relations process and some have not. The major problem that we have encountered is that because the process which has been working over the past two or three years in local authorities has speeded up the decision making process and has led to decisions in practice being taken in a greater degree of secrecy. This has meant a failure to communicate information to trade unions and to the workforce and to consult trade unions and the workforce and therefore to the possibility of industrial relations problems. That is a generalisation and obviously there have been authorities which have been behaving very well in this respect and others which have not. By nature, the speeding up of the process and the fact that it enables decisions to be pushed through very quickly can not only disadvantage the community; it can also disadvantage the workforce as well.

  317. What impact will this have on national bargaining?
  (Jean Geldart) That is an interesting question. I am not sure what the connection is sometimes between individual local authorities and national bargaining because—

  318. National bargaining sets benchmarks. I was on a local authority myself. I know some of the problems. There was a collective of personnel committee chairmen that used to meet.
  (Jean Geldart) There may still be collectives if there are lead spokespersons. I suspect that in practice what will happen is that personnel officers will take a higher role than perhaps they have in the past.

  319. It will be purely officer led instead of member led?
  (Jean Geldart) I suspect there will be a move in that direction if authorities do not define lead members and make this a key area of responsibility. I appreciate your point about national bargaining but most of the trouble that occurs in local authorities does not revolve around national bargaining issues; it revolves around local issues. At the moment, you have best value reviews which may lead to cuts in workforce and changes in working patterns to out-sourcing and so on. It is those sorts of things which tend to lead to problems rather than the once a year national pay bargaining. I was talking more about the local decision making process rather than the national one.

  320. Do you not think the leader of the council would have a more important input into that than, say, the chairman of the personnel committee?
  (Kate Foley) You have the two ring binders next to the Chairman. They do not mention these issues of relations with the workforce. We would say that councils are disproportionately workforce centred organisations by the nature of the services that we deliver. Our view is it is important that there is a relationship between elected members and officers and the industrial relations machinery and mechanism, the joint framework. We would hope that that issue will be taken seriously and will be built into councils' reflections on how they are going to move to new structures and that they will not neglect it, given that their attention has not been specifically drawn to it by the advice they have been offered by the DETR.

Mr Benn

  321. You referred to the particular issues arising in relation to best value currently, affecting different areas of council services at different times. Does that not make it difficult to say that there is one executive member who we want to have lead responsibility, when in fact the nitty gritty issues that you need to discuss are with the lead member who has responsibility for that area that is the subject of best value review. I am not clear how those two competing arguments you have just put are going to be reconciled within the context of the new structure.
  (Jean Geldart) You are right up to a point. However, if nobody has responsibility for industrial relations as such, it tends to be something which is given lip service to. "Yes, we have consulted the unions", meaning, "WE have sent them a copy of it two days before it went to committee." It is very difficult for the unions or representatives of the workforce to find somebody they can raise the strategic areas of what the consultation mechanism ought to be, for example, about best value, because the authority should be operating the same consultation mechanism on all best value reviews rather than doing it on a review by review basis. That is the point we would make in relation to that. Clearly, we would want to see an openness in best value. There is agreement by national employers and trade unions that trade unions should be involved in best value reviews. A very large number of local authorities are not involved with trade unions in best value reviews. This is symptomatic of the problem that those authorities are not being directed towards the fact that it is better to have the workforce on your side than to create situations which are liable to lead to industrial relations problems.

Chairman

  322. What is going to happen with the scrutiny overview system both as far as officers and members of Unison? How far are either group going to be in a position to put in submissions of evidence to scrutiny panels?
  (Kate Foley) I do not think we know how the system is going to work out in practice yet. We have advised our branches that they should know which overview and scrutiny committees are being set up, have notice of their work programme, pay attention to the issues that are coming up. In some authorities, they have established a formal mechanism about the relationship between the trade unions and the overview and scrutiny committees. That is probably a desirable thing to do, to try and work those things out in practice in advance. It seems to me that there are a number of issues that local trade unions might very well want to make comments on which will be matters that overview and scrutiny committees will be looking at. It would be helpful to those committees that the unions should make comments, either write to people or appear and make representations. That will add to the work the committees are meant to be undertaking and it will be helpful. As far as officers are concerned, you have heard quite a bit already about some of the issues of concern and those are issues that we echo in terms of things that our members who are chief officers have said to us. There is a two-fold concern. One is, on the one hand, officers are, if they are in a semi-competing relationship with an executive member who has the same portfolio as the officer is responsible for, there is a question of whose professional judgment is foremost in the situation. The other is that they are being more politically exposed. They are being held to account for decisions that they perhaps feel are the responsibility of the Cabinet and not of officers. There are two sets of concerns for chief officers really.
  (Mr Kendall) In practical terms, the difficulty for chief officers in particular will be that 90 per cent of their time will be spent in supporting the executive. In the course of that support, they will have occasion to give very sensitive advice to members of the executive on tactics, timing or the implications of what is being considered. The tension arises when the scrutiny committee wants to examine the final outcome and wants to know precisely what advice was given by the chief officers, perhaps in a confidential session, perhaps even to the point where the access to information regulations do not require disclosure. That does put chief officers in a very difficult position. On the one hand, they disclose the evidence and they might be seen by the executive not to be giving proper support. On the other hand, if they do not answer the question, they will be seen by the scrutiny committee as not fulfilling their duty to all members of the council. It is a tightrope, frankly.

  Chairman: On that note, can I thank you all for your evidence?


 
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