Joint Committee on the Draft Local Government (Organisation and Standards) Bill Report

Effect of the bill on council officers

126. The draft bill says very little about the implications of its provisions for local authority officers. A number of witnesses highlighted this, complaining that the bill makes "virtually no mention" of how it will affect staff and officer-member relationships.[97] As with other aspects of the draft legislation, the White Paper provides a fuller account in its section on the role of officers in the new structures. In summary:

  • the chief executive role will remain and will be required to serve the whole council and therefore will need to be politically neutral (paragraph 3.82);

  • appointment of the chief executive is to be made either by full council or by the executive with the consent of the full council (paragraph 3.83);

  • chief officers will also be appointed by the full council/executive or by the council manager under that model (paragraph 3.84);

  • while the majority of officers will be deployed supporting the executive, there may be a need to form small groups to support the mayor/leader and the scrutiny function (paragraph 3.85);

  • under the council manager model, the council manager would have the right to attend and speak at any meeting of the authority, except for a meeting of a scrutiny committee, but will not have a vote (paragraph 3.86).

132. These provisions, assuming they will be incorporated in the bill or are provided for by other means, appear sensible and straightforward. However, we were worried that there appeared to be one anomaly; that is in relation to the appointment of the council manager. The White Paper (paragraph 3.83) says that full council would appoint the council manager, but that this function could also be exercised by a committee appointed for the purpose (paragraph 3.55). We recommend that the arrangements for appointment of a council manager be clarified.

133. It became clear, over the course of our inquiry that the new structures proposed by the bill will have significant ramifications for the officer role, particularly at a more senior level. While there are several issues that will affect staff, we have limited our discussion to the three principal issues which the Government need to consider at this stage:

  • executive/scrutiny split—implications for officers;
  • the role of the chief executive; and
  • statutory protection against dismissal for senior officers.

Executive/scrutiny split—implications for officers

137. The introduction of an executive/scrutiny split calls into question the role of officers in this division of functions. The key issue is whether separate, dedicated, and independent teams should be provided for the cabinet and for scrutiny committees, or whether officers could be expected to 'face both ways'. Only a few witnesses expressed a view on this issue and opinion was split.

138. The ACSeS did not believe that there should be a separation of staff,[98] although they accept that in practice this may need to happen. The Welsh Local Government Association in their response to the Government on the draft bill also made it plain that it was against this separation in officer roles. It argued that this is incompatible with "an open dynamic, learning organisation where all are responsible for self-evaluation and improving performance". It goes on to criticise the Welsh Assembly for recruiting dedicated staff along the lines of the Westminster model which it considers inappropriate since "local government will not be able to afford the inefficiency of this model and the adversarial relationship that it assumes would inhibit the learning culture to which local government aspires".[99]

139. However, other witnesses were in favour of allocating separate teams for the two functions. UNISON were of the view that otherwise "there clearly is a potential conflict between giving advice to both sides".[100] And Mr Taylor of SOLACE suggested that "there should be a responsibility on the chief executive to put in place arrangements, which may well mean that if there is a fully developed scrutiny role, there is somebody who is charged with doing the research and support for the scrutiny committee".[101]

140. Provision of staff resources also has a bearing on whether the scrutiny function and non-executive councillor roles will be meaningful. The ACSeS argued that the critical factor in this was to ensure that sufficient officer resources were allocated to the scrutiny function.[102] If this can be achieved it may go some way to allaying the concerns we highlight below about political careers of non-executive councillors (see paras 131 to144). The Association argued that the bill should include a duty on councils to ensure that they allocate sufficient resources to the scrutiny function.[103] This could be a problem for small authorities.

141. We share witnesses' views that separate teams of staff dedicated to the executive and scrutiny functions may well evolve but we do not think it is necessary to introduce a duty on councils to provide for a division of labour on these lines. Indeed, the Government appears receptive to this sort of arrangement. The White Paper (paragraph 3.85) provides the flexibility which allows councils to form separate teams of staff to support the scrutiny and executive roles. And the Minister told us she saw some advantages in having specific groups to advise scrutiny (and even area) committees.[104] Contracts of employment should be with the council as a whole however.

142. We recommend that contracts of employment of the Head of the Paid Service and all officers of the authority should be with the Council; but nothing should prevent specialisation in service of executive or council, nor career mobility between the two. We further recommend that a review of the effect of the bill on the employment of local government officers be carried out five years after the commencement of any Act.

The role of the Chief Executive

143. As the Association of Local Authority Chief Executives (ALACE) points out, the political-staff interface can be crucial to the successful running of an authority.[105] The officer role which is likely to be the most affected under the new structures is that of the Chief Executive. Witnesses put forward a number of concerns relating to: the possible abuse of power[106]; increased delegation of decision-making; and the politicisation of the Chief Executive role.

144. In their written response to the Government, SOLACE argued that a re-definition of the Chief Executive role was crucial because the proposals implied a move to a system where more decisions are delegated to fewer individuals.[107] It is also argued that a re-definition is required to provide a clearer distinction between political leadership and managerial roles. Currently there is a blurring of these roles and chief executives may find themselves fulfilling political duties, while councillors become more involved in managerial matters.[108] The Minister told us that the "Government is protective of the independent role of officers".[109]

145. Concerns also arise in respect of the role of the council manager where a model provides for such an appointment. According to the White Paper, the council manager will, under the political guidance of the mayor, have responsibility for developing and preparing the budget and the policy framework, and implementing policy and service delivery. It is also widely expected that he or she will assume the role of chief executive. Although the Government does not wish to be prescriptive about the mayor/manager model, some indication of functions is clearly wanted.

146. We considered the need for setting out a detailed definition of the role and function of chief executives. While we do not accept this is required, we recommend that either in a schedule or by regulations the core functions of a chief executive be set out, so as to include:

—  overall management responsibility;

  • the provision of professional advice to all parties in the decision-making process (executive, scrutiny and other committees of the council);
  • political neutrality;
  • responsibility for a system of record keeping for all executive decisions;
  • service to the whole council.

151. We also recommend that the Government give guidance about the tasks and duties of the council manager and nature of the relationship between the council manager and mayor. To the extent that the manager assumes the responsibilities of the chief executive, the preceding recommendations should apply.

Statutory protection from dismissal for senior officers

152. Under the current system of local government there are three 'statutory officer roles' in each authority: head of paid service (generally the chief executive); chief financial officer (also known as a 'section 151 officer'); and the monitoring officer (usually the senior lawyer in a council with a statutory duty to advise the council on the lawfulness of its actions and to report contraventions of the code of practice—ie whistle blowing). Currently only the head of paid service has statutory protection from dismissal under the Local Government and Housing Act 1989.

153. Under the new arrangements, the monitoring officer will have a key role in serving the local standards committee and will also be the main point of contact between the council and the Standards Board. Specifically, the White Paper states that the responsibilities of the monitoring officer under the new structures will include: maintaining the public register of interests; advice and assistance on ethical standards to members and officers and the Standards Committee; and investigation of misconduct referred by the Standards Board.[110] These functions are set out in the White Paper but are not included in the draft bill.

154. Witnesses told us that because of these new responsibilities monitoring officers would need statutory protection from dismissal to allow them to carry out their duties properly and to ensure the new standards framework can work effectively.[111] There appears to be a risk that these officers may become more vulnerable to abuses of power—"as a result of their investigative responsibilities and as the primary adviser to the Standards Committee".[112] As the Civic Trust put it, the monitoring officer "may come under undue pressure on occasions, for example from unscrupulous councillors who sought to suppress issues".[113] There is a similar argument in relation to the role of the section 151, or chief finance officer, who has the responsibility for advising on those decisions with financial consequences.[114] We recommend that the provisions in the 1989 Act which protect the head of paid service from dismissal should be extended to cover monitoring officers and section 151 officers.

Effect of the bill on councillors

155. The proposals of the bill are bound, and intended, to affect the way councillors work. Most of the evidence on this aspect was concentrated on the role and work-load of non-executive councillors.

156. Some witnesses looked forward to the changes. Councillor Sir Jeremy Beecham hoped that councillors would have "a more engaged role"[115] and represent the community to the council rather than vice versa.[116] The Minister felt that with the pressure of committee meetings reduced it would be possible for people to serve on the council and "still have a life".[117] Other witnesses expressed concern, feeling that the role of non-executive councillors—the "community councillors"—would be much reduced; it was suggested that they would be "marginalised". The point was also made that in countries where the proposed system already operated there were usually far fewer councillors than in the UK. As Councillor Lord Hanningfield put it, "they find it is going to be a real role for ten, and what are the other 69 going to do?"[118] Nor was the suggestion that back-bench councillors would be free to spend more time on their community work universally welcomed; some felt that they were already performing this role well.[119] Some, such as Hampshire County Council[120] went so far as to suggest that this might make it harder to recruit councillors (to which the government counter-view is that it will encourage a different mix of people to come forward). It may be that some of the fears expressed may be based, to some extent, on misunderstandings and lack of clarity both as to the existing and the proposed system, although there have obviously been bad experiences in some councils which were among the first to adopt forms of executive arrangements.[121]

157. Non-executive councillors will remain members of the full council, which will retain important functions under whichever executive model is adopted, and which are set out on pages 21 to 23 of the White Paper.

158. Under the directly-elected mayor with cabinet model, the council decides its new constitution; agrees the policy framework; agrees the budget; and appoints the chief executive and chief officers. Councillors outside the executive propose amendments to the budget to the mayor and cabinet; propose new or changed policies to mayor and cabinet; represent electorate; and scrutinise executive.

159. Under the cabinet with leader model, the council decides its new constitution; agrees the policy framework; appoints the cabinet leader and may appoint cabinet; and appoints the chief executive and chief officers. Councillors outside the executive propose amendments to the budget to cabinet and/or leader; propose new or changed policies to cabinet and/or leader; represent electorate; and scrutinise executive.

160. Under the directly-elected mayor with council manager model, the council decides the new constitution; decides the policy framework; decides the budget; and appoints the Council manager and possibly chief officers. Councillors outside the executive propose amendments to the budget; propose changes to council policies; represent the electorate; and scrutinise executive.

161. As we have seen, under all models certain planning, regulatory and quasi-judicial functions will remain with the full council, subject to the normal rules governing delegation (see paragraph 102 above) and there is provision on the face of the Bill for scrutiny committees, whose role, if safeguarded, could be influential.

162. The White Paper is optimistic about the role of non-executive councillors under the proposals, envisaging "powerful roles for all councillors". The government expects that under the new arrangements "the majority of councillors will have greater freedom and a greater impact on the direction of the council and the services it provides to local people than is currently the case". The government expects that the changes will give non-executive councillors: a freer role in the review of policy and the formulation of future policy; a duty to question and evaluate the impact of the decisions and actions of the executive even if they are in the same political party; and more time to undertake these roles and to consult directly with those they represent because day to day decision-taking will be by the executive (paragraph 3.13).

163. The Government expect councillors in their representative "community" role to play a significant part in the consultations on the development of local performance plans; fundamental reviews of best value; other local initiatives, for instance on community safety; and the community planning process more generally.

164. Professor Stewart identified a wide variety of roles for back-bench councillors, including the possibility of supporting the cabinet to protect its members from overload.[122] Such a suggestion was also made by Bury Metropolitan Borough Council who wrote that this might help to train councillors as future executive members.[123]

165. What non-executive councillors will lose under the provisions of the draft Bill are the powers, under the existing committee system, to take certain detailed decisions other than those in respect of planning applications and other regulatory functions. In a paper forwarded to us by the LGA, however, Professor Leach forcefully makes the point that these powers are not as real as they might seem in that many authorities already operate an informal cabinet system and that "the reality is ...that the intentions of the majority are highly unlikely to be changed by the debate, nor are opposition members in a position to play a well-briefed and effective scrutiny role except on selected, high-profile topics".[124] Or, as Lewisham Citizens' Panel put it from a slightly different angle, "they have actually decided what they are going to do in the pub before they came to the meeting".[125] The golden age of power for back-bench councillors, if indeed it ever existed, has long gone, certainly outside areas with no overall control. Professor Stewart felt that their powers had been eroded, particularly by the development of party discipline.[126]

166. It is clear to us that there is scope within the proposed legislation for each council to establish for itself the role of the non-executive councillors. Professor Leach has prepared a table showing best and worst case scenarios, which we reproduce at Annex 2. The Committee recommends that any eventual Act and the regulations or guidance governing its implementation should ensure that local authorities adopt constitutions that offer the powerful roles for non-executive councillors described in the best case scenarios in Annex 2. We believe this will be made more likely if the recommendations we make elsewhere in this report on decision-making, information and scrutiny committees are adopted.

167. The Committee does not underestimate the culture shock that some—though by no means all—councillors may feel working in the new environment of an authority operating under executive arrangements. However, it should be noted that executive arrangements have up to now been applied in a totally unregulated environment, and some of the new models adopted do not appear to accord fully with the provisions of the draft bill.

168. The old committee system did have a role to play in educating councillors. Councillor Harrison told us that the committees had been his "nursery and his university". The fear was expressed that its disappearance might lead to future councillors being less well-equipped to challenge the executive than they are at present and also less well-prepared to move into executive office in due course.[127] The White Paper, in setting out what the committees will need to fulfil their functions does specify that they should have "the facilities, training, information, guidance and officer support needed for their members if they are to have full knowledge of what their local communities want and the necessary skills to represent these people fully effectively". We recommend that guidelines be published setting out the full range of possible duties of councillors not on the executive and fulfilling a community role; together with ways in which they may be enabled better to fulfil them (see also para 140 above).

Scrutiny Committees

169. Clause 7 of the draft Bill provides that there must be one or more overview and scrutiny committees. Their duties are to scrutinise the discharge of the executive functions and to make reports and recommendations to the authority or the executive on matters relating to the discharge of the executive functions of the authority, and other functions of the authority which are connected with those functions. The committees may require members of the executive and officers of the authority to appear before them to answer questions and may also invite other persons to attend meetings.

170. The role of the overview and scrutiny committees is one of the areas where the draft Bill sets out in only the broadest outline how the government see the future. The White Paper, on the other hand, makes it clear that "an oversight and scrutiny committee would:

Councils might also choose forms of local governance allowing their overview and scrutiny committees to request a debate at full council before a particular decision is made or implemented by the executive." (paragraph 3.19).


175. Some witnesses felt that it would cause confusion to expect the scrutiny committees to perform both the overview and the retrospective scrutiny functions. Professor Stewart thought that the use of the one term "overview and scrutiny" tended to restrict perceptions of the possible breadth of activity of such committees. He warned that some authorities were interpreting scrutiny in the narrowest sense of the word, commented that in reality it was a wide-ranging set of tasks which would have to be done in different ways. He said that one of his worries was that the Bill 'seems to suggest that it should all be done by this one type of organisation ... whereas for policy development you need different mechanisms and for questioning the performance of the cabinet you need different ways of doing it".[128]

176. The Bill as drafted allows local authorities to set up only one scrutiny committee if they so choose; the implication of the evidence from the Labour Campaign for Open Local Government was that such was the case in Hammersmith and Fulham,[129] although the Council subsequently explained that they had also four scrutiny panels on two of which ('roughly speaking') each councillor served.[130] The London Borough of Enfield told us of six themed scrutiny panels.[131]

177. We recommend that the regulations or guidance should make clear the presumption that there should be more than one scrutiny committee, but leave open the possibility that an authority may wish to set up committees to cover individual portfolios or functions, or on a multi-functional or cross-cutting basis.

178. We have mentioned at paragraph 146 above the possibility of councils calling in executive decisions as part of their policy function "to review decisions taken by the executive".[132] The Local Government Information Unit wrote "it is particularly important that the full council approves the constitution of the council, in order to protect against structures which would remove too much responsibility from the full council. This could include arrangements for calling in or vetoing of decisions of the mayor or executive".[133] Westminister City Council however raised the prospect of wilful delay.[134] We recommend that scrutiny committees should have the power, within one week, to call in any executive decision before it is implemented. A timescale for considering such decisions should be specified in each authority's standing orders.


179. The provisions of the Bill as to membership of the scrutiny committees are that no member of the executive may be a member (Clause 7 (2) (a)), that the chairman of the authority may not be a member (Clause 7 (2) (b)) that non-members of the authority may be invited to attend (Clause 7 (3) (b)) and that, by implication of the exemption of the executive and its committees from the requirement for political balance (Clause 9), that the membership is to reflect the political balance of the whole council. The White Paper makes reference to the co-option of experts. We think that co-option should be permitted, but, with the exceptions provided for by law, not compulsory.

180. Some witnesses queried whether, in a small authority, there would be sufficient members to form adequate scrutiny committees. We feel that such small authorities are likely to be shire districts and to have few functions, and we do not expect problems to arise.

181. It was also suggested to us that in councils dominated by one party it might be difficult for scrutiny committees rigorously to scrutinise the executive.[135] Suggested solutions included the co-option of outsiders, the introduction of some form of proportional representation for local elections and the relaxation of the rule requiring committees to reflect the political balance of the council. The Local Government and Housing Act 1989 provides for an authority to waive the requirements of proportionality if there is unanimity. Some authorities already do this to strengthen opposition representation within the existing committee system. We recommend that the provision requiring council committees to reflect the balance of the council should be relaxed in respect of scrutiny committees to allow for disproportionately large representation of opposition groups if an authority so wishes and provided the rights of all members are protected.

182. It would appear that some authorities, at least, are thinking in terms of a rotating membership for scrutiny committees.[136] This might be considered to negate part of the value of a scrutiny committee system (as operated, in Westminster) which is that it enables members to become experts on a subject. Clearly this is a matter for each authority's constitution but we advise from our own experience against rotating membership.

183. In written evidence the Society of County and Unitary Public Relation Officers (SCUPRO) suggested to us that the current Code of Practice on Local Authority Publicity needs to be reviewed to reflect the new decision-making arrangements proposed in the draft bill.[137] In particular they highlighted publicity for the activities and reports of scrutiny committees in examining council policy, practice or executive decisions. SCUPRO told us that the current code does not provide for this. We recommend that the Code of Practice on Local Authority Publicity should reviewed and where necessary amended to reflect the new arrangements proposed in the draft bill.


184. It was the opinion of some witnesses that scrutiny committees will only be effective if they are not whipped. One member of the Lewisham Citizens' Panel commented that if the scrutiny committees were whipped "they would just be a sham".[138] Unfortunately, whipping in some form is a fact of political life which would be very hard to eradicate, and which, as Professor Stewart pointed out, gives a degree of cohesion and direction to the authority.[139] As the DETR witnesses commented, "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 should".[140] They also felt that "it was very hard to forecast how far whipping will happen",[141] and pointed to the experience of parliamentary select committees which have found that they can be more effective if they take a bi-partisan approach.[142] Evidence from the Labour Campaign for Open Local Government suggests that whipping remains prevalent in some London authorities that have made early moves towards the new arrangements.[143]

185. Professor Stoker approached the question of whipping by suggesting that the issue was not the same in the cases of overview and of scrutiny. The first function "is the review of policy, which I think inevitably, if it is a high-profile political issue, will have some element of whipping and a straightforward party discipline in it. It is difficult to imagine it not, but I would imagine the scrutiny function, the function that is about investigating the performance of the authority, could be something where there could be a much more substantial role for opposition members and, indeed, much less emphasis on whipping. Indeed, to work effectively then I think de-emphasis on whipping needs to occur".[144]

186. The question of whipping was discussed in the McIntosh Report on the relationship between the Scottish Parliament and Scottish local government.[145] This concludes that it would be open to councils themselves to adopt rules that where whipping is applied in council business it should be declared at the commencement of the relevant discussions and minuted for public information and record. While we doubt that such a change in practice would significantly alter the use of whipping, it would be an aid to transparency and accountability. We therefore recommend that authorities, when drawing up their constitutions and reviewing their standing orders, should consider incorporating a rule that where whipping is applied in council business, it should be declared.

187. We tend to agree with those who feel that whipping in scrutiny committees would reduce their effectiveness but are sceptical how far, without a fundamental change in the culture of local government, it will be possible to avoid it. We learned from Councillor Sir Jeremy Beecham[146] and the Minister[147] that the Labour Party is conducting a review of party rules on the way that councillors conduct themselves in challenging decisions in the context of scrutiny committees. We consider that if any change is to be made to the whipping procedure it lies in the hands of the parties.

188. The development of the scrutiny function has implications for the staffing of local authorities, which we have considered at paragraph 114 et seq.

Impact of the bill on the electorate


189. We have referred above to the lack of interest shown by the electorate in local elections. The Government hope that the provisions of the Bill, in particular the possibility of a directly-elected mayor, will help to counteract this. Even they, however, are more confident of the diagnosis than the prescription; the White Paper says "Whilst the causes of falling turn-out are not straightforward, people are not encouraged to vote in their council elections when they do not know who in the council is really making the decisions, or how their local councillor is able to help them. What is clear is that low and falling turn-outs weaken a council's claim to be able to speak for local people, and damage, and ultimately would destroy, their ability to give leadership".[148]

190. Professor Stoker, a vigorous advocate of directly-elected mayors, put the argument very strongly, suggesting that the system has "now virtually lost all democratic legitimacy. Since 1973 in metropolitan districts turnouts have bumped along at about the mid-30s level. They slumped to below 30 per cent on average in the last two local government elections. We know from another survey that has been undertaken that less than 12 per cent of 18-24-year-olds actually claim to have voted in local government elections". He had no truck with the argument that it might be the decline in local authority power that caused the lack of interest, telling us that turn-out had been low even before local authorities lost power.[149] Professor Stewart told us that even in the 1930s turnout in local authority elections was in the 30 or 40 per cent range. In his view "there was no golden age of turnout".[150] While he accepted that the turnout might rise in a first round of mayoral elections, he insisted that "there is no firm evidence that elected mayors would have an effect on turnout".[151]

191. The proponents of the directly-elected mayor system suggest that overseas it encourages voter turn-out. Unfortunately, the waters are muddied by compulsory poll-attendance in a number of the places where mayors are directly elected and by the strong civic tradition in countries such as France. The gladiatorial element may encourage press, and consequent public, interest, but even in the ultimate gladiatorial combat, that for the presidency of the USA, only about 50 per cent of the adult population (a larger group than the same percentage of registered voters, it must be said) take part. On the other hand, a recent ICM poll of 1000 adults in the UK, as well as suggesting that 66 per cent favoured direct election of a mayor, also indicated that 40 per cent would be more likely to go to the polls under such a system.

192. It is argued that any executive system, whichever option is adopted, encourages voter interest because it makes clear who is responsible for council decisions. Against this must be set evidence that people do not care so much about knowing who makes the decisions as in having the possibility of influencing them.[152] If a new system were to have the effect, as some fear,[153] of increasing the number of decisions taken in private (see para 171), it might even increase public cynicism. The effect of direct election of a mayor on voter turnout will to some extent be tested, in London in May 2000, though this will not be a local government election.

193. There was a point of view, represented strongly to us by the ACSeS, that the measures proposed in the Bill, "while they will go some way to improving the efficiency of present arrangements they will not in themselves enhance the profile of local government with local electorates, or at least not sufficiently to make a material difference to turnout at local elections". The Association recommends measures to enhance the "financial accountability of local authorities (particularly by substantially increasing the proportion of council expenditure raised from local taxation), measures to reform the electoral registration and election processes, the introduction of community planning powers (with express powers given to local authorities to promote the economic, social and environmental well-being of their areas, including express powers to carry out referendums and other innovative forms of local consultation) and a reconsideration of previous proposals to introduce biennial elections for councils on the basis that electoral fatigue will inhibit rather than stimulate interest from the electorate".[154] Professor Stewart did not think that election of mayors would in itself improve turnout. He suggested that an extension of postal voting and "participation democracy" would be more effective.[155] Other proposals, like electronic voting and changes in electoral systems were mooted.

Consultation with the electorate

194. Under the White Paper, it is expected that every council will "be required to consult its local community—local electors and other interested parties, including business, other public bodies and the voluntary sector—about how that community is to be governed and what form of local governance will be best suited to give it the leadership it needs to prosper and to provide its people with a good quality of life" (paragraph 2.2). And, of course, elaborate petitioning and referendum procedures are established by the bill (see paragraph 75 et seq).

195. Some councils have already embarked on such consultation. It is clear that it is not enough just to make questionnaires available or even to send them out; we received written evidence from residents of Enfield to the effect that the questionnaires were too difficult to understand and that few were requested and very few returned.[156] Professor Stewart and others also drew our attention to the fact that people do not always have the necessary level of information to answer intelligently; he explained that one poll in Birmingham had elicited from 51per cent of people the response that they did not know London was to have an elected mayor and he speculated that many might misunderstand the nature of the mayoralty being proposed, perhaps thinking that they already had a mayor who was elected.[157] While we may concur with the Lewisham Citizens Panel that one should not underestimate the intelligence of the electorate,[158] we agree with Hammersmith and Fulham Council that "engaging the public on a real debate on the merits of alternative models will not be an easy task";[159] it is clear that proper consultation will require a good deal of work from councils and that central guidelines might be helpful.

196. It is impossible for us to conclude whether or not the direct election of mayors will of itself improve voter turnout, as many other factors have a part to play.

197. The level of indifference to and cynicism about local government issues means that consultation, petitioning and referendum procedures will need careful handling and the Government regulations and guidance we refer to in paragraphs 75-87 above will need to reflect this.

198. We asked witnesses from MORI if there was a danger that people might get tired of being constantly consulted. He thought that in terms of serious issues of local government (as opposed to "questions about baked beans") most people wanted their local authority to listen to them. The only danger might arise in certain restricted areas of activity such as education action zones where ill-co-ordinated consultation might provoke an adverse response.[160] What did come across strongly, particularly in the evidence from MORI[161] and from the Lewisham Citizens Panel, was that many people are deeply cynical about local politics. Ms Ryan of the Citizens Panel believed that "hopefully the directly-elected mayor would have to be less party political"[162] and that this would encourage people to vote. She was thinking in terms of, perhaps, a local business person standing for election. The system of whipping was also roundly criticised (see para 156).


Sittings of the executive

199. Some witnesses, among them Epsom and Ewell Borough Council[163] felt that the government objectives of more community involvement, a simpler structure and faster decision-making, more effective scrutiny and maintenance of the highest standards of conduct "cannot be met by taking policy and executive decision-making behind closed doors" and contrasted the proposals unfavourably with the old system where decisions were, ostensibly at least, taken under full press and public scrutiny. Others, like Professor Leach, were of the view that under present arrangements the reality was very different (see paragraph 141 above).[164] Kent County Council wrote, "failure to allow briefing to take place in private would only force pre-cabinet meetings which would take place in private".[165]

200. We consider that the government's proposals make some aspects of decision-making clearer where decision-making has been concentrated in the hands of a leadership group within the majority party. However, this oversimplifies the internal arrangements of groups. It will continue to be the case that party groups will meet in private and it will remain unclear where and by whom decisions are made. Just as a Parliamentary Select Committee reaches its conclusions in private but publishes its report and the evidence on which it is based, we do not think it appropriate that the executive should necessarily meet in public; nonetheless, we believe that the maximum possible information about such meetings be published.

Publication of information

201. While the draft bill makes no provision for the publication of information, otherwise than as relates to the terms of proposed new constitutions, the White Paper devotes paragraphs 3.59 to 3.65 to the subject. The key principles are, as a minimum: that the provisions on access to information will need to comply with the legislation on the freedom of information; an executive must ensure that a record of all decisions taken and the reasons for those decisions is produced, and that record, along with factual and background papers (excluding information which currently would not be made public) relating to those decisions must be made public. Once a decision is taken by an individual, the record of that decision, including the reasons, and (if they have not already been provided ) any papers containing the analysis and facts relating to the decision must be made public and available to all councillors. Current access to information provisions will continue to apply to meetings of the full council, its committees and sub-committees, including meetings of overview and scrutiny committees. Where an executive consults an overview and scrutiny committee, this would be open to the public under the same rules as currently apply to committees. Overview and scrutiny committees should also have the right to see (but not make public) any information relating to their responsibilities which currently would not be available to the public; and political advice to the executive remains private.

202. Witnesses' chief concerns were that the current provisions regarding provision of information would not apply to the agenda of, and papers before, the executive. As the Commissioner for Local Administration in Wales said, "one of the features of the current system which is fairly unique is that the public have access to agendas and reports to committees in advance of a meeting and certainly, in so far as openness is an important contribution towards good conduct, then I think that in so far as papers for meetings of the executive will not be available in advance, that will be a diminution of the current rules on openness".[166] In his experience, the lack of adequate written records has contributed to "the symptom of arbitrary decision-making".[167]

203. The old system of committees did at least ensure that information was available-perhaps in unmanageably large quantities. Some councils expressed the fear that the new system would lead to less information being available. Others, from pilot areas, complained that it had already happened. Councillor Bird of Hammersmith and Fulham told us of his own experience as a councillor and school governor. In the absence of an education committee, and with no education issues coming before the scrutiny committee in three and a half months, he now found himself attending governors' meetings and not knowing "about the numeracy strategy and how it related to local schools, the Green Paper on teachers' salaries, going right the way through a whole range of issues where you have this information gap".[168] He felt that the previous system under which he could attend the education committee for call-over at least enabled him to know what the current issues are. We put it to Councillor Bird that "there is a general convention that any elected member of a local authority has an absolute right to know anything which is relevant to the exercise of their duties and their functions as an elected member", and also that he currently had a right to attend the executive. His view was that it was not sufficient that councillors could make inquiries; they needed information in a focussed and structured way.[169] Hammersmith and Fulham Council, in their written evidence acknowledged that an 'information gap' can initially arise for back-bench and non-executive councillors, but explained what they were trying to do to close it.[170] We noted that, at present, Hammersmith and Fulham Council do not publish agendas of the executive in advance of the meetings.[171]

204. We consider that the provision of information about the activities of the executive is central to public confidence—and the confidence of councillors outside the executive—in any new system. Accordingly, we recommend that the agenda of the executive be published in advance, together with all papers relating to items which are on the agenda for decision, and that this should be made clear in regulations.

205. Earlier in our report, we considered the question of recording of decisions. We reiterate our recommendation that when executive decisions are recorded and published, the reasons for these decisions, together with factual and analytical material supporting them, should be published.

Publication of officer advice

206. The White Paper, but not the Bill, addresses the question of whether the advice of officers to the executive should be made public, saying "publishing the advice from officers would ensure greater accountability for political decisions". On the other hand, some argue that the position of officers would become difficult when it was clear to the public that their professional advice was not being followed on a major issue. The government is inclined to make this information public too, alongside factual material. While noting that such publication is at variance with the practice followed in the Civil Service, we believe that the government should follow its inclination and recommend that (with the exception proposed in the White Paper regarding political advice) the advice of officers should be published when it relates to a decision.

Veto and conflict resolution

207. As we have observed elsewhere, the bill itself gives no indication of what will be the duties of the executive and what will continue to fall to the full council but the White Paper does. It is expected that the executive will implement policy and deliver services; and it will draw up the annual budget for submission to the full council and lead the preparation of plans and strategies. The council will approve overall policy and decide revenue and budgets. Members of the full council outside the executive will also serve on planning and regulatory committees and on scrutiny committees. But what if the executive, particularly an executive led by an elected mayor, and a council disagree on what is a policy issue and what is implementation?[172]

208. It is also possible that political tensions might arise between an elected mayor and the council caused by features of the electoral system or a hung authority. The SV electoral method which will apply to mayors under the bill, the fact that the first elections may well be held mid-term, outside the normal electoral cycle, and the unpredictability of voter behaviour when given two simultaneous possibilities of exercising a political preference might well conspire to produce a mayor of one party and a council of another. Thus one witness wrote "if the proposals in the Draft Local Government Bill are implemented, there is a real risk that relations between an elected mayor of one party and the assembly dominated by a different party may be routinely politicised and increase the risk of policy making becoming gridlocked".[173] Professor Stoker also acknowledged the possibility of different results, even if council elections were conducted under a form of PR. But the outcome worried him less. "What you then have" he said to us "is competing mandates, the mandate of the mayor and the mandate of the assembly (council), and what they would do is negotiate".[174]

209. What should happen when disagreements arise—for whatever reason? The White Paper foresees the possibility of disagreement both on matters of policy and budget-setting. It suggests that on policy, councils may wish to provide in their constitutions for a power of veto whereby an elected mayor could veto a council decision within a week of its having been taken. The issue would be referred back to the council and the veto could be overridden by a second vote—either by simple majority or such other larger majority as may be provided in the authority's new constitution. For circumstances where the council may have amended the executive's budget, the White Paper suggests a veto procedure will be necessary. One approach would be like that set out above. Alternatively, it suggests a procedure based on that proposed for the Greater London Authority (GLA). Here, a mayor might bring the budget back to the council a second time. At that stage, any amendments by the council would require a two-thirds majority.

210. The Committee note that while the question of veto procedures takes up over two pages of the White Paper, it does not feature in the bill at all. The presumption is that it can be left to each authority to include such a procedure in some form or other in its new constitution. We consider it odd that details of budgetary procedure be set out for the GLA but that no common form of conflict resolution appears in this bill, nor is likely to be provided for in regulations. We recommend that there should be a requirement that each local authority's constitution makes provision for a conflict resolution procedure and that guidance be issued as to the forms which such a procedure might follow.

Economic, social and environmental well-being

211. As we noted in the first paragraph of this report, in the original White Paper "Modern Local Government: In Touch with the People" the Government said that it would introduce legislation to place on councils a duty to promote the economic, social and environmental well-being (ESEWB) of their areas and to strengthen councils' powers to enter into partnerships. The effect of such a provision would be to provide "an overall framework within which councils must perform all their existing functions".[175]

212. The draft Local Government (Organisation and Standards) Bill, in its present form, does not include any ESEWB provisions, though the accompanying White Paper promises "such other legislation as is necessary to carry through the rest of the White Paper agenda", including the ESEWB duty.

213. Many witnesses thought that the current draft bill was a suitable legislative vehicle, to which the ESEWB duty should be added.. The LGA entered such a plea when they gave evidence to us. They thought that the new duty would provide a necessary supporting legislative base for the sort of community leadership which the current draft bill sets out to promote. It was also necessary to provide greater flexibility in what councils could do. "The ultra vires doctrine has been rigidly applied and a number of decisions over the last few years have underlined that in effect councils can only do that which they are permitted to do by statute".[176] The LGA drew our notice to the fact that the Greater London Authority Bill currently before parliament included such a general power. The Local Government Information Unit and many other witnesses shared the view that the ESEWB duty should be included in the bill.[177] Indeed, no-one offered a contrary view.

214. The case has a compelling logic about it. As Professor Stewart wrote, "New political structures should be related to new roles. Rather than structures precede roles, they should follow from the roles".[178]

215. The Government were reluctant to commit themselves on whether or not the power would be included in this draft bill. The Minister in her replies to us indicated that they were still considering how the powers would "fit into the legislative framework for local government".[179] She also referred to business management reasons for not increasing the size of bills.[180]

216. Given the views expressed, the Committee believe that the Government should bring forward provisions relating to the ESEWB duty in the context of the bill currently proposed, without pre-empting debate by Parliament as to whether the provision should be in the form of power or duty, or as to any provision necessary to avoid duplication of functions. They note that in the Greater London Authority Bill only three clauses were required to introduce this duty—one to confer the duty, one to limit it, and one to provide for consultation in the exercise of it. It would be difficult to argue, therefore, that such a provision should be excluded from the present draft for reasons of business management and parliamentary time. We recommend that the Government take this opportunity to add to the bill the legislative provisions necessary to impose on councils a duty, or give them the power, to promote the economic, social and environmental well-being of their areas.

97  App2 ALACE; Q242 Back

98  App1 Back

99  App84 Back

100  Q307 Back

101  Q279 Back

102  Q503,App1 Back

103  Q503 Back

104  Q733 Back

105  App2 Back

106  App2 Back

107  App45, see also QQ242,245 Back

108  Q245 Back

109  Q731 Back

110  Cm 4298; paragraph 4.18 Back

111  App1 ACSeS; see also App 45 SOLACE Back

112  App1 ACSeS Back

113  App 62 Back

114  App45 Back

115  Q105 Back

116  Q115 Back

117  Q730 Back

118  Q102 Back

119  Ibid Back

120  App23 Back

121  Q660  Back

122  Q659 Back

123  App5 Back

124  App30 Back

125  Q431 Back

126  Q656 Back

127  App 39 North Yorkshire County Council; see also Q240 Back

128  Q659, also App 1 Back

129  Q200 Back

130  Q589 Back

131  App17 Back

132  Cm4298, para 3.19 Back

133  App74 and 31 Back

134  App53 Back

135  Q188 Back

136  Q196 Back

137  App44 Back

138  Q448 Back

139  Q688 Back

140  Q33 Back

141  Q32 Back

142  Q33 Back

143  Q236 Back

144  Q186 Back

145  Q186; Report of the Commission on Local Government and the Scottish Parliament, June 1999, p31 Back

146  Q127 Back

147  Q717 Back

148  Cm4298, para 1.19 Back

149  Q172 Back

150  Q663 Back

151  Q661 Back

152  App28 London Borough of Lewisham ; see also App 35 MORI Back

153  Q196 Back

154  App1 ACSeS Back

155  Q661-2 Back

156  App18 Back

157  Q694 Back

158  Q409 Back

159  App22 Back

160  Q358 Back

161  App35,Q Back

162  Q427 Back

163  App19; App69 Back

164  App30 Back

165  App72 Back

166  Q454 Back

167  Q455 Back

168  Q197 Back

169  Q203 Back

170  App22 Back

171  Q599 Back

172  Q513; App1 ACSeS Back

173  App60 Dr J Brooks Back

174  Q165 Back

175  Cm4014 Back

176  Q113-114; App29 Back

177  App 31; App 73; see also App 1 ACSeS; Q 289 UNISON; App 42 Royal Society for the Protection of Birds; App 83 Welsh Local Government Association; App 46 SOLACE (Wales); App 56 Bedfordshire County Council; App 82 TUC; App 64 County Council Network). Back

178  App48; Q664 Back

179  Q738 Back

180  Q739 Back

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Prepared 3 August 1999