Draft Local Government (Organisation and Standards) Bill Appendices to the Minutes of Evidence - First Report


APPENDIX 30

Additional memorandum by the Local Government Association

  Firstly I would like to thank you for offering the Local Government Association the opportunity to present evidence in person to the Committee on 22 June 1999. We hope that you found our answers to your questions useful and informative.

  The Association fully acknowledges that the traditional committee system does have a number of deficiencies and we support the Government's agenda to improve the openness, transparency and accountability of decision making in local government. We have, since the publication of the White Paper, "Modern Local Government—In touch with the people" actively encouraged local authorities to review their arrangements and to adopt new interim structures in advance of legislation.

  The development of proposals in consultation with local people, community and voluntary groups and businesses will also be crucial to the success of any new structures. The LGA has been very active in encouraging authorities to consult and involve stakeholders not only in these proposals but also in the wider context of service improvement and delivery. We have produced a wide variety of documents to provide guidance to authorities on how to engage their communities and have also established "The Democracy Network" with the I & DeA to enable the sharing of best practice amongst authorities.

  There are a number of points which the Association would like to make to provide clarification on some of the issues raised by members of the Committee.

  Understandably there was a great deal of discussion about elected mayors and the use of referenda and public polls to trigger such proposals. The concept of elected mayors has dominated much of the debate and does seem to be the preferred option of the Government. At present though, current evidence, for example from the LGA's own five key areas survey, does not suggest this is the preferred option of local authorities.

  The Local Government Association does not oppose the idea of directly elected mayors and will seek to support those areas that do introduce such arrangements in any way that it can. What the Association does oppose is the suggestion that (1) directly elected mayors would be appropriate for all areas and (2) central Government should impose a referendum for a directly elected mayor on a number of major cities or on any authority across England and Wales.

  The Association strongly believes that arrangements involving directly elected mayors are much less likely to be appropriate in some areas, for example rural areas and indeed that none of the three models may be appropriate in some areas particularly those less dominated by party politics.

  On the issue of the imposition of referenda. The Association believes that where a referendum is to be held it must be owned locally by local communities and by the authority which will be working with the structure. A structure imposed on a locality will inevitably lead to tensions within and between communities and with elected members and may well lead to serious defects in the democratic process. This can only serve to worsen the reputation of local government and is something the Association obviously wishes to avoid.

  That is not to say that the Association does not see the benefits and opportunities of directly elected mayors in those areas where there is a genuine commitment from communities and authorities to working with such an arrangement.

  Related to this issue is that of public opinion. Much has been made of a number of surveys which have shown public support for the idea of directly elected mayors. The Association does not wish to enter into a debate about the validity of such statistical consultation mechanisms nor to try to discredit the surveys by suggesting that trained statisticians can always achieve the results that they want to. Surveys can, and often do provide an informative snap-shot of views and opinions.

  However, if such surveys are to be used to make such major changes to local democratic processes it is a local authority's duty to ensure that those consulted are aware of all the issues and the consequences of such changes so that they can make fully-informed choices.

  The Association is also aware of public consultation that has taken place that has not produced such startling opinion in favour of directly elected mayors. For instance in a survey by MORI, commissioned by the LGA in 1998 to investigate the attitudes towards voting respondents were asked which of a list of 12 options would be most likely to encourage them to vote. Only 21 per cent of respondents said that voting for a directly elected mayor would make them more likely to vote, the third lowest figure of all 12 options and well behind the top three options; voting from home via the telephone—40 per cent; having polling stations at shopping centres—38 per cent; and having polling stations at supermarkets—37 per cent. This evidence would suggest that voting for directly elected mayors would not then bring about the massive change in turnout at elections that it has been claimed it would achieve.

  MORI also carried out some work for the Cabinet Office's own People's Panel of 5,000 people on local democracy. Members of the panel were asked for their views on a number of statements about opportunities for giving their views on the way council services are run in their area. Whilst 55 per cent did support the idea of elections for local mayors this was the least supported of six suggestions.

  The LGA are also aware of consultation carried out by the London Borough of Camden which provided a great deal of information to residents about a range of proposals for future structures, including the three options in the White Paper and retention of existing arrangements. A large response from a wide range of Camden's citizens was achieved and contrary to what might have been expected the majority of respondents appeared to favour a retention/improvement of the current committee based structures.

  These are just three examples which help to highlight the LGA's view that surveys should not be taken in isolation and that authorities have a duty to consider other factors in the taking of decisions for the benefit of all communities within their area and for the best results for local democracy.

  Thirdly, on the issue of referenda. The LGA supports the intention that local communities should be able to choose their form of local governance. There are obviously a number of issues still to be resolved around the conducting of binding referenda which the Association hopes will be addressed by secondary legislation. Such issues include:

    —  the form of the proposition to be put to local people and how consensus for it is secured;

    —  the provision of information to local people in order to facilitate informed debate;

    —  the role of campaigning;

    —  what mechanisms should be used to conduct the referendum—would using alternative polling methods (eg telephone voting, all postal ballots, etc) help increase participation;

    —  should referendums be held at the same time as local elections; and

    —  how the cost of local referendums should be met.

  It would also seem to be appropriate that if the referendum is to be binding that a threshold should be set, especially in the light of the low turnout at recent elections and also as the result will introduce a major change in local democratic arrangements which can only be change by a subsequent referendum—but not for at least five years.

  Local ownership of the question used in a referendum will also be vitally important and the LGA would like to re-iterate its view that any imposed referenda should be administered by an Independent Electoral Commission as outlined in our response to the DETR.

  The Association is also concerned that the proposals, as they stand, do not give local people real choice. A referendum will only allow local people to choose a directly elected mayor. The proposals also mean that citizens can only choose to have arrangements which are not one of the three models by voting against a directly elected mayor.

  The LGA would wish to see that if referenda are to be used to determine future arrangements that they could be used by Councils to offer a greater range of options to local people, including all three of the draft Bill's models and any other locally developed solutions. Only then will local communities have a real choice about how they are governed.

  There was also a great deal of discussion about the role of "back-benchers" or "non-executive" members in arrangements with splits between executive and scrutiny functions and expression of concern that the new arrangements would not provide rewarding roles for those members outside of the executive. Cllr Harry Jones mentioned a paper which had been written by Professor Steve Leech of De Montfort University which addressed this very issue. I have enclosed a pre-publication copy of this for the Committee's information.

  More generally on the role of back-benchers the Association would like to re-iterate two points. Firstly, it has been suggested that the future roles will not be as rewarding as current arrangements and will not appeal to existing councillors. This could be restated as the new structures could be used to provide different roles which will attract different people from local communities to stand for election. This will help to increase the diversity of elected members and ensure that they are more representative of the communities they serve.

  The Association is also of the belief that there can be, in some cases, an overstatement and a mis-representation of the current role of councillors. Decisions taken at committees are often taken in party groups, outside of formal decision making arrangements. This point is dealt with in more detail in Professor Leech's paper.

  Finally, as a matter of information I would like to outline the work being undertaken by the Association to develop an additional model which allows for executive decision making by area or neighbourhood committees. Officers are working with a small number of local authorities which already have in place neighbourhood decision making arrangements. This small group will work to develop a basic model along the lines of those in the draft Bill outlining the basic structure and processes for decision making and policy development. This model will then be circulated amongst a wider range of local authorities, DETR, academics and other interested parties to try to "flesh out" the proposals and to ensure that it provides a suitable option for those authorities who wish to pursue this type of decision making. If this model is developed within the lifetime of the Committee I will, of course, be happy to send this to you.

  Once again, I would like to thank you for providing the Association with an opportunity to contribute to the work of the Committee. I look forward to seeing the final report and recommendations. If I can be of any further help please do not hesitate to contact me.

Annex

NEW POLITICAL MANAGEMENTS STRUCTURES

The Role of the Non-Executive Member by Professor Leech

  The proposals for new political management structures in local authorities in England and Wales, set out in the White Paper "In Touch with the People" and the recently published Draft Local Government Bill, imply a clear separation between some form of executive or cabinet (which may or may not include an elected mayor) and an assembly, which respond to policy proposals made by the executive and scrutinises its decisions.

  Although the White Paper argues that the proposals will give all councillors—whether or not they are members of the executive—a "new enhanced and more rewarding role" (para 3.39), this is not a perception which is shared by many of those existing councillors who do not anticipate becoming a member of an executive. It is clear from the discussions at the many seminars for local authorities on "new political structure" in which the author has been involved that one of the greatest concerns of such members is that their role will become "marginalised". There is a strong antipathy to the creation of "two classes" of councillor—executive and non-executive—which is perceived to be a consequence of the government's proposals, and a perception that non-executive councillors—whether of the same or a different party from that of the executive (assuming that one party has an overall majority)—will become relatively powerless in the new circumstances, leading to a lack of morale and subsequently difficulties of retention and recruitment of non-executive assembly members.

  This paper argues that these fears, although understandable are largely unfounded, so long as local authorities in general and party groups within them in particular follow the spirit of the proposals set out in the White Paper and Draft Bill. In other words there is an important degree of choice in the way in which the proposals are responded to. The key areas of choice are discussed below. Many of the choices will be in the hands of party groups, individually and collectively. Different political compositions—eg, one-party states, majority party rule, no overall control—and different features of political culture—in particular the nature of inter-party relationships—are likely to have a significant influence on the perceptions of party groups as to what is and is not possible or desirable under the new cabinet/assembly regime. But these differences do not detract from the principle that the future of the non-executive member's role is largely in the power of the parties represented on council to decide.

  In this paper the arguments of the White Paper about the scope of the non-executive role are set out, and the areas of choice which are open to local authorities identified. It is important that analysis is based in a realistic account of the current roles and role interpretations of members who are not in the informal cabinets which now exist in almost all majority-controlled authorities (and in many hung authorities) and so an assessment is provided of the existing role-sets of "non-executive" members. Six specific non-executive roles—decision-making, policy formulation, scrutiny, local representation and advocacy, regulation and community networking—are then identified and discussed in detail. In each case attention is drawn to the differences of role interpretation that might be expected in different political situations (majority control, no overall control, etc), between different political parties and in response to whether a party has majority control, regards itself as in opposition, or is a small party in neither of these positions. Some of the administrative and training implications of the changes are then set out. Finally there is a conclusions section which emphasises the crucial impact of party group attitudes and disciplinary culture in opening up or closing down the scope and attractiveness of non-executive roles.

 THE WHITE PAPER PERSPECTIVE

  The White Paper "In Touch with the People" sets out three options for executives—elected mayor plus cabinet, cabinet plus leader, and elected mayor plus council manager. The recent LGMB research on local authorities' current planned responses to this agenda confirms that almost all authorities prefer the "cabinet plus leader" option. As a result, the emphasis in this paper is on the implications for non-executives role in this option.

  The responsibilities of "the executive" will be the same in each case, ie to:

    —  translate the wishes of the community into action;

    —  represent the authority and its community's interests to the outside world;

    —  build coalitions and work in partnership with all sectors of the community, and bodies from outside the community, including the business and public sectors;

    —  ensure effective delivery of the programme on which it was elected;

    —  prepare policy plans and proposals;

    —  take decisions on resources and priorities;

    —  and draw up the annual budget, including capital plans, for submission to the full council. (Para 3.39).

  These roles can be summarised as "community leadership", "external networking" (local, national and international), "policy and plan formulation" (including the annual budget) and "executive decision-making".

  The White Paper goes on to identify a number of important roles for non-executive or "backbench" members.

1.   SCRUTINY

    "Under the new models, a council would be required to establish scrutiny committees of backbench members (who) would be under an explicit duty to review and question the decisions and performance of the executive" (para 3.41).

2.   POLICY REVIEW AND DEVELOPMENT

    "(Councillors) would also review the policies and direction of the council proposing changes and submitting policy proposals to the executive" (para 3.41).

3.   LOCAL REPRESENTATIVE/ADVOCACY

    "Each councillor will become a champion of their local community, defending the public interest in the council . . . . They will bring their constituents' views, concerns and grievances to the council through their council's structure. Their role will be to represent the people to the council rather than to defend the council to the people. (Paras 3.43 and 3.42).

4.   DECISION-MAKING

    The White Paper is clear that assembly members collectively will retain the power to accept, reject or suggest amendments to a budget proposed by the executive (para 3.44). By implication, the same power will apply to other major policy initiatives such as the community plan, service plans and local plans. There may also be scope for "requisitioning" specific executive decision for assembly debate and recommendation, prior to their implementation.

 5.   REGULATORY RESPONSIBILITIES

    Responsibilities would include . . . those quasi-judicial functions such as planning, licensing and appeals which it would not normally be appropriate to delegate to an individual member of the executive. (Para 3.44).

6.   COMMUNITY NETWORKING

    Although less explicit about this role, the White Paper makes several references to the value of "decentralised structures for decision-making" (para 3.48) including area committees, and the value of local consultation initiatives (para 3.50). It can be assumed that non-executive members would play a central role in such structures and processes; indeed this seems an essential element in their ability to be effective local representatives and community advocates (see above).

  The White Paper is distinctly upbeat about the potential of these non-executive roles. It paints a picture of an existing institution in which "councillors can in practice be excluded from the real decision taking and yet have no power to challenge or scrutinise those decisions" (para 3.40). It argues that "in truth local councillors . . . will have a greater say in the formulation of policy and the solving of local problems than they would have within current committee structures" (para 3.43). In general, "this enhanced role will provide new opportunities to backbench councillors. The role could be less time-consuming but it will be high profile, involving real and direct responsibilities for the well-being of their community and will be more challenging and rewarding." (Para 3.45).

  It is this positive portrayal of the future role of the non-executive member which most existing backbenchers find unconvincing. There is a mismatch between central government's expectations and local councillors' scepticism. In the rest of this paper the sources of and justification for these different perceptions are explored. However, it is important to discuss first the extent to which the government's perceptions of existing backbench roles are justified. Is it true for example, that "councillors can in practice be excluded from the real decision-taking?"

Non-executive Roles in Current Circumstances

  Although formal executives, in the sense identified in the White Paper, cannot operate under existing Local Government law, a large majority of local authorities now acknowledge the existence of a cabinet of leading members either on an informal or formal basis (although the latter cannot of course take decisions). Recent LGMB research showed that over three-quarters of local authorities acknowledged the existence of some form of cabinet, or its equivalent. Typically such cabinets consist of the leading members (including committee chairs) of the dominant party (or of parties working together in some form of partnership administration). Thus in informal terms in politicised local authorities in England and Wales there is a de facto distinction between cabinet (or executive) members and non-executive members, albeit in a situation where cabinet members lack the power to actually make decisions.

  So what roles can non-executive members play under the current system? The informal cabinet typically develops a collective view about the desired response to an agenda of policy decisions (including policy statements) which will usually emphasise corporate issues but which will regularly also involve service-specific issues, assuming they are of enough importance to merit discussion at this level. These responses then take two different routes. First, they move into the formal decision-making system in the form of officer reports and recommendations (in the light of the steer provided by the cabinet), which will form part of the agenda of the Policy and Resources Committee or the appropriate service committee. Secondly, they may become the subject of group discussion—and ultimately group decision—at a meeting of the majority party (or parties, if there is a partnership administration).

  Normally, Policy and Resources Committees will be dominated by cabinet members (who are also typically chairs of the main service committees), with little scope for non-executive members of the majority party to be included. There will be the requisite proportion of opposition members, who will have the choice to engage in public debate about the issues concerned, and in the limited way that is possible at such meetings to scrutinise the decisions which the majority party intend to make. The reality is of course, that the intentions of the majority party 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.

  Similar points can be made about committee meetings. The chair and vice-chair will be aware of any inputs from the cabinet (of which the chair will almost certainly be a member), which will be reflected in the content of the relevant committee reports. Otherwise the agenda will reflect detailed discussion between the chair and chief officer concerned. Any issues which arise which merit a cabinet steer will become the subject of informal discussions between chair and leader (unless the chair is trying to limit the application of this process to his or her own service!)

  The non-executive opposition members will enjoy the same opportunities for debate and (superficial) scrutiny which prevail in relation to Policy and Resources Committee agendas with the same lack of ultimate influence, ie the decisions made will be those agreed in advance by the majority party group represented on the committee. In this latter process, although there will be opportunities for non-executive majority party members to contribute to a debate in private before the formal committee meeting, that debate is typically dominated by the committee chair who has been instrumental in setting the agenda. Sometimes decision intentions may be changed at this meeting—most commonly to defer an item. If an item is deferred, the issue may well become a topic for debate and decision at the full group meeting. For all the items on which the pre-committee group meeting is prepared to agree with the chair's preferences, even on the basis of a majority vote, then support in public is required from all group members. In some committees—eg planning control—there may be more scope for the expression of individual views, without the constraints of a collective and binding group "decision" than in others. But the normal practice is for a collective view—heavily influenced by the chair—to be reached in the vast majority of the decisions to be faced.

  The second opportunity for non-executive members to discuss and possibly amend the preferences of the cabinet is the party group meeting, which in principle, if a non-executive member can persuade a majority of his or her colleagues that cabinet recommendations should not be accepted, then that view will prevail. There are two forces which militate against this outcome. First, if as is likely, the issue is one which the cabinet has already debated then all the cabinet members are likely to support the collective cabinet view. Such support may indeed be an explicit expectation; but even if it is not, the informal peer group pressures within the cabinet will strengthen the probability of the same outcome. Secondly, there is a limit to what can be discussed at group meetings which may themselves only occur on a monthly basis. Thus the would-be challenger to the collective wisdom of the cabinet has to get his or her item on agendas and then succeed in generating a services debate about it. Time constraints and the perspective of the group officer who draws up the agenda may both operate against the interests of the individual non-executive member here.

  The non-executive member may be able to play a part in policy formulation, depending upon the way the decision-making process is structured. Many authorities use small working parties to generate (or review) policy, sometimes on a single party basis but usually all-party. This kind of mechanism provides an opportunity to influence policy, as does playing an active part in the manifesto formulation process, either within the party group or (for Labour and Liberal Democrats) through the external local party machinery.

  Local representation is customarily pursued through the chasing up of local casework or site-specific issues through the officer structure. Local issues can of course be raised at committee or party group meetings. At the latter they have to get through the competition for inclusion on the agenda. At committees the raising of local issues is not encouraged (except perhaps at planning or area committees) particularly if it contradicts the agreed group line. Indeed attempts of local pleading in such circumstances may be construed as grounds for disciplinary procedure. There are exemption clauses for issues of conscience and issues where the councillor's credibility at ward level would be seriously affected if he or she publicly accepted (and voted for) the group line. However these instances are very much the exception.

  There is some scope for external networking at the non-executive member level, either through current development/area committee initiatives or through the opportunities to act as the council's representative on an external body (eg school governors and voluntary sector management board). It would normally be the case, however for cabinet members to be the council's representative on significant outside bodies (eg SRB boards, health authorities, LGA county branches).

  Thus a range of role opportunities for non-executive members do exist in the current system, but many of them are heavily circumscribed less by the formal initiatives of local authorities than by the tradition of local political culture both within party and between party. It would be possible for a majority party not to agree a collective position on committee agenda items before a committee meeting, and to allow a view to develop during the course of the meeting, but it is rare to find a party group that does so!

  Party group discipline continues to apply in situations of no overall control. Indeed in a tense and conflictual hung authority there is often a premium on a party group "holding together" to extract maximum political gain from the formal decision-making processes where the outcomes typically become much more uncertain.

  The point to emphasise is that there currently exists no golden age of power and influence for non-executive (or backbench) members. There is the opportunity to participate in formal public decision-making processes, which would be greatly reduced particularly in relation to the detailed business of service committees, in a move towards a cabinet with executive powers. But the constraints on the behaviour of non-executive members in politicised authorities are considerable, particularly in the Labour Party, least so amongst the Liberal Democrats. Similar party group-centred constraints exist in relation to the public advocacy of local issues, if the content of the advocacy is at odds with the group line. It should be emphasised that such behavioural constraints do not normally have to be imposed on unwilling group members; they are accepted and internalised as necessary and appropriate ways of operating. If backbench members sometimes feel frustration about the constraints, it is generally tempered with a recognition of the need for them.

  The non-executive member can, within limits, influence party group decisions, and if a move to the new system significantly decreased such opportunities, that would be an understandable cause for concern on their part. But the extent to which the authority of the party group will be fundamentally challenged by a move to cabinet government is an open question which we examine in greater detail later in this paper.

  There exists some scope at present for the involvement of non-executive members in policy formulation and external representation, depending on the particular political dynamics of the party group in question. At worst there is very little scope—eg where the policy-making process is dominated by an experienced group of senior members.

  It would be difficult to sustain an agreement that the current position of non-executive members is a satisfactory one, either for them or from the perspective of a transparent, accountable decision-making process. The White Paper's analysis of the problems of the current system though challengeable in detail, is in general a plausible representation of reality.

The Allocation of Powers Between Executive and Assembly

  The White Paper and Draft Bill make it clear that local authorities will be required to establish some form of executive/cabinet and to allocate certain types of function (see p 2 above) to it. But as the LGMB/LGA/Democracy Network report "New Forms of Political Executive; Practical Implications" points out, there currently exists a whole range of important choices concerning the allocation of functions between executive and assembly. It may be that subsequent primary or secondary legislation erodes these areas of choice. But is unlikely, having acknowledged in the White Paper the importance of local circumstances that the Government will see the need to become overly prescriptive in this respect. Until and unless it does, the following choices are open to all local authorities, in addition to the choice about which of the three models of executive to adopt.

Decision-making

  The definition of what constitutes policy and what constitutes executive action. The wider the definition of policy, which has to be approved by the assembly, the more power non-executive members have in relation to their decision-making role.

Policy Formulations

  The scope for the assembly to initiate policy proposals for consideration by the executive (see White Paper para. 3.41). The more this power is built into a council's operations, the greater is the scope for non-executive members' involvement in policy formulation. In addition, in so far as scrutiny involves policy review, this too constitutes a non-executive influence on policy (for presumably the results of a policy review or scrutiny would normally be expected to lead to policy changes.)

Scrutiny

  The way the council interprets the role and scope of "scrutiny". As "New Forms of Political Executive" points out, precisely what scrutiny means has yet to be clarified. In principle scrutiny could focus on policy and/or specific decisions. It could operate in a post-hoc mode (ie reviewing particular policies or decisions) or in relation to proposed policies of decisions, before adoption or implementation. It could cover administrative issues (how is this authority run) or substantive service or policy issues (why is this service performing badly?) It could focus on the qualitative (audit, performance review) or the qualitative (evidence of public concern about the way a policy is being implemented). The general point to emphasise is that the wider the definition of the scrutiny role, the more central a part it will play in the operations of a local authority and the greater will be the non-executive members' involvement.

Local representation/community networking

  There is a choice about the extent to which an authority wishes to introduce decentralised structure for decision-making, either to operate as part of the scrutiny arrangement (White Paper, para 3.50) or exercising delegated executive responsibilities (through council officers, acting locally under guidance from political representatives or neighbourhood forums [para 3.51]). The wider the scope of such arrangements, the stronger is the non-executive member's community networking (and indeed decision-making) role at the local level. In addition such machinery would support and legitimise the "local representative" role of the non-executive member in the assembly.

  It is now clear that the regulatory role is seen as appropriate for the assembly, rather than the executive. In addition the Standards Committee—which is a form of regulation—would be expected to be an assembly responsibility, possibly aided by external co-opters.

  There are a number of other significant areas of choice, for example around frequency of assembly meeting; level of dedicated support for assembly members; access to information provided to executive members; and involvement in appointment of senior officials. However the important choices—those which have direct consequences for the non-executive members' role set—are those which have been highlighted above.

  It is apparent that depending on the choices made by each council, which will in turn reflect the choices made by the party groups on the council, it would be possible at one extreme to define a wide-ranging and substantial set of roles for non-executive members whilst at the other extreme, it would be possible to define a much more limited and constrained set of roles. In the former case, it would be difficult to argue against a proposition that non-executive members would have a fulfilling and influential part to play. In the latter circumstance, it would be difficult to argue in support of such a proposition. Table 1 sets out a "worst scenario" and "best scenario" for non-executive members. In reality most authorities are likely to emphasise certain roles at the expense of others, and hence locate somewhere between the two extremes.

Figure 1: Roles and Responsibilities of Non-Executive Members
Worst Scenario Best Scenario
Decision-Making Role"Policy" defined in narrow terms I
relatively few policies requiring assembly approval.
"Policy" defined in broad terms I
relatively large number of policies requiring assembly approval.
Policy FormulationAll policy formulation responsibilities reserved for executive. Considerabel scope for assembly to formulate policy for consideration by executive.
ScrutinyNarrow definition of scrutiny, emphasising audit, performance review and "best value" initiative. Wide ranging definition of scrutiny including reviw of policy and policy proposals, and opportunities to scrutinise executive decisions prior to implementation.
Community NetworkingNo area committee or community forums established. All executive decisions taken by cabinet. Area committees established with delegated executive responsibilities and budgets, in which non-executive members play a leading role.
Local RepresentationLittle scope for local advocacy at assembly meetings. Scrutiny procedures do not encourage "local member" perspective. Local advocacy role encouraged at the frequent assembly meetings. (eg through "question time" initiatives). Scrutiny procedures incorporate local members' perspectives.
Regulatory RoleShared between cabinet and assembly. Exclusive to assembly.


  It is clear from the contrast between the "worst scenario" and "best scenario" element of Figure 1 that to a large extent the scope for a fulfilling and influential role set for non-executive members is in the hands of each local authority. But a further set of choices then come into play. How will the role opportunities provided for non-executive members actually be utilised? It is one thing for a non-executive majority party member to have the opportunity to ask leading questions of his party colleagues on the cabinet at a publicly well-attended assembly meeting. It is another for him or her to actually use this opportunity.

  To pose this question immediately brings us back into the world of party group behaviour and party group discipline. The separation of cabinet and assembly responsibilities and the emphasis placed on the "scruntiny" and "local representative" role of assembly members imply major challenges to the traditional norms and rules of party group operation, in particular the predisposition to maintain a united front in public, however sharp the disagreements that have been expressed in private, at party group meetings. Whatever the council decides formaly about the allocation of cabinet/assembly responsibilities, an equally important consideration is the extent to which party groups will encourage or permit the changes in behaviour implicit in the performance of these new non-executive roles, and the extent to which non-executive members will themselves be prepared to change the habits of a political lifetime! In the light of these dilemmas and uncertainties, it is important to subject the six non-executive roles identified not just to a functional analysis, but also to a political analysis.

The decision-making role

  Let us assume a situation where policy has been defined in relatively wide terms, and that for a range of policy proposals, assembly approval is required. This is itself implies a good deal of power for non-executive members. Although they cannot collectively substitute an assembly policy for a cabinet proposal which does not achieve majority support, they can "refer back" a proposal for reconsideration, which is likely to lead at least to a compromise proposal subsequently emerging from the cabinet.

  All non-executive members would in these circumstances have a substantial decision-making role. But how would they exploit it?

  For opposition members, in an assembly in which one party enjoyed majority control, there would be opportunities for public criticism of the proposals of "the party in power" and for political points-scoring (particularly when a local election was imminent) similar to those which exist at present. If opposition behaviour continued to take this form, there would be a strong pressure for group loyalty on the part of the majority party members—executive and non-executive alike, just as there is at present. In such circumstances, one would expect the role of majority party non-executive members to be largely supportive of their colleagues' policy proposals; certainly to vote for them and rarely to raise significant cirticisms of them. If this scenario developed the decision-making role of the non-executive member would continue to be a predominantly formalistic one.

  But there is a possible alternative senario, which would stem form changes in the normal practice of intra-and inter-party relations.   It is likely that support for cabinet proposals from non-executive members of the same party would be forthcoming only if the cabinet agreed to consult the party group in advance of any formal presentation of policies to assembly, and to amend the proposals if there was a majority view within the group opposing particular elements of them. If the cabinet were not prepared to concede this continuity in party group practice then non-executive group members would be more likely to evaluate and challenge cabinet-inspired policy proposals "on their merits". In effect the group whip would cease to apply (as far as the non-executive party group members on the assembly were concerned).

  The question then becomes how would the opposition parties behave? One possiblility is that they would make maximum political capital out of the public disunity of the majority party (eg "here we have a cabinet which cannot even convince its own supporters of its policy"). If this strategy proved effective particularly in terms of media coverage that was critical of the cabinet, then the likelihood is that the majority party would close ranks. Cabinet and assembly members would agree a "consultation" deal, and the traditional patterns of support would resume.

  Alternatively it is possible that opposition groups would modify traditional behaviour and also be prepared to judge each case on its merits, supporting aspect of a policy proposal which they genuinely agreed with, but criticising those with which they did not agree. It is hard to imagine that this process would not be preceded with some collective deliberation and preparation on the part of opposition groups. But it is possible that group discipline would be applied with a relatively light touch, and that the tone of debates on policy proposals would become more genuinely deliberative. The potential benefit for opposition groups is that they would be able to bring about concessions and modifications in policy from the cabinet, assuming they too were prepared to operate in this more open-minded way. If this were the case, it is possible to envisage assembly debates over policy becoming much more open and genuinely deliberative occasions with pre-agreed party positions and party controls over the content of individual contributions decreasing, though by no means disappearing as a dominant influence. The cabinet would gain in terms of freedom from the constraints of party group veto powers, and the ability to operate as a genuine Westminster-style cabinet. Majority party non-executive members would gain in the enhanced autonomy to say what they think and vote as they think appropriate. Non-executive members would gain in the potential to inspire cabinet members to make policy changes if they can convince them in argument. What would be lost is the sharpness of party distinctiveness, which stems from a predisposition to criticise and oppose. It is at least conceivable that this new pattern of intra- and inter party relations would develop in certain political circumstances; and things would be refreshingly different if it did.

  This scenario of more open debate is probably more likely in political circumstances other than "majority party plus substantial opposition". In authorities dominated by one party where the opposition was too small to be effective, the dominant party would have little to lose by allowing more open public debate amongst its members in assembly (although precedents from existing one-party dominated councils are not encouraging in this respect). In authorities with no overall control, it is probably only by attempting to develop a culture of open debate in assembly, and responsiveness to the outcome of that debate on the part of the cabinet, that the council's business could be effectively dealt with. Unless two parties were openly operating "in partnership" at both cabinet and assembly level, it would be extremely difficult to "fix" in advance the outcome of assembly debates; and even where such partnerships did operate, a relaxation of discipline in assembly debates would act as an important safety valve for assembly members who were concerned to have the chance to question inter-party agreements reached within the cabinet.

  The tensions expressed in this section between the traditional pressures for party discipline and implications of the separation of functions between executive and assembly reappear in relation to at least two of the other non-executive member roles; scrutiny and local representation. It is likely that authorities who are able to generate a more open climate of debate, less dominated by predetermined party stances in relation to the decision-making role of the assembly, will be able to deal with the other roles in a similar way. Equally a failure to create such a climate in relation to one role is likely to mean similar difficulties with the others.

Policy development and review

  It is possible within the spirit of the White Paper, to allocate responsibilities for policy formulation in such a way that the assembly shared the responsibility rather than it being the sole prerogative of the executive. Whilst it would always be expected that the executive would play the dominant role in relation to this function, there is nothing to prevent a local authority setting up some kind of assembly machinery for developing policy on selected topics. Policy proposals developed for this source would have to go to the executive for consideration with the expectation that they would re-present the proposals to assembly in modified or unmodified form.

  If such machinery were established it would have to be on a proportionate all-party basis and it would have to operate relatively informally. There are precedents in the way many local authorities operate at present. Informal policy panels, working groups or task forces are widely recognised as the most appropriate means of developing policy rather than through formal committees, which would be inappropriate anyway for an assembly that could not make formal decisions on the policies that were developed.

  The key issue is how the policy topics which the assembly members would work on would be decided. Negotiation between executive and assembly seems to be the only realistic basis, if one is talking about new policy areas (such as crime and disorder) rather than the review of existing policies. In relation to existing policies there is a much stronger case for allowing the assembly to decide what policies it wishes to review, given that review is analogous to scrutiny and the choice of scrutiny topics should, it can be argued, be the prerogative of the assembly. In reality the two processes are difficult to distinguish. Policy review is likely to result in proposals for policy change and hence is itself a form of policy formulation. In practice, whatever the formal powers of an assembly to initiate policy review or scrutiny, the topics involved are likely to be the subject of informal negotiation within the majority party group (or groups) concerned.

Scrutiny

  It was noted earlier that scrutiny can in principle cover a whole range of topics.

    —  scrutiny of existing polices (eg policy for the under 5's);

    —  scrutiny of policy proposals developed by the cabinet, before formal submission to the assembly (eg a community plan, or indeed the Council budget);

    —  scrutiny of past decisions by the executive (eg a school's closure);

    —  scrutiny of decisions intended to be made by the executive, before they are implemented (eg the designation of a new civic amenity site);

    —  scrutiny of service-performance (using the kind of comparative indicators indentified in relation to best value;

    —  scrutiny of administrative decisions or practices of the executive (eg the way senior officers are appointed).

  Clearly if an authority decides to institute wide-ranging scrutiny procedures, there is a de facto demanding and high profile scrutiny role for non-executive members. The key issues then become first how are topics chosen and secondly how do non-executive members behave on the scrutiny panels established.

  In the discussion of non-executive members' decision-making role, two possible scenarios were identified. In the first, adversarial party politics becomes re-established in the new structures and the assembly behaves in much the same way as in the practice in council meetings in the current system. In the second, adversarial party politics become diluted, and a more open form of debate in which there is much less predetermined constraints on individual party group members becomes established. Similar choices apply to scrutiny procedures. it would be relatively easy in an authority with conflictual inter-party climate for an adversarial ethos to quickly develop in relation to scrutiny. Scrutiny would be seen by the opposition as a chance to expose and embarrass the majority party (in its cabinet manifesto). Indeed the very word "scrutiny" is sometimes interpreted in an adversarial way with House of Commons Select Committees a common reference point. But just as debate over majority party's new policy proposals does not have to be adversarial, neither does the operation of the scrutiny function. Scrutiny is better seen as a relatively objective investigation into a policy or a particular decision, before or after the event. In such an investigation, it is likely that strengths will be found as well as weaknesses. A scrutiny report should give proper tolerance to strengths and weaknesses. If scrutiny were conducted in this spirit, it would become more likely that the executive will see it as less of a threat and more of an opportunity for learning, and that non-executive members will see it as an opportunity to reflect on past (or intended) practice and to influence the executive.

  As with decision-making, the way in which non-executive members of a majority party operate in scrutiny mode will be influenced by the attitude of other parties. If opposition parties use it as an opportunity for an executive-bashing exercise, carried out in adversarial style, non-executive majority party members on the scrutiny panels are likely at the very least to remain silent and probably to leap to the defence of their cabinet collegues. If opposition members adopt a more balanced perspective, there is every reason to suppose the majority party members will also act in this way, criticising where they feel this is necessary, praising where they feel praise is due. It is in relation to the scrutiny function that moves have already been made within the Labour party to relax group discipline (ie to not apply the whip). This will encourage appropriate scrutiny behaviour but will not sustain it, if opposition parties are felt to be making political capital out of the process. There are other parallels with the arguments made in relation to decision-making. In a one party-dominated council, it will prove relatively easy for the dominant party to relax group discipline in relation to scrutiny and for non-executive members to take advantage of this relaxation. After all if they do not scrutinise effectively, there is no one else to to it.

  Similarly hung authorities often already operate with a more open style of debate; and the problems of ensuring group discipline across an executive/assembly divide would be formidable. The main exception would be those hung authorities where there developed a relatively strong cooalition which in the new system would become much more formalised. Particularly if the coalition had a narrow majority in the assembly, there would be strong predisposition to maintain group discipline along traditional lines. In a more fragmented hung authority, the problems of maintaining group discipline would be much greater and the acceptance of an approach to scrutiny as advocated in the White paper much more likely.

  The other factor which could play a major part in the impact of the scrutiny process is the allocation of responsibility for identifying topics for scrutiny. The non-executive role is enhanced the more this selection process is dominated by assembly members. Again the two scenarios identified earlier would come into play. In the first a majority party attempts to control the scrutiny process, which is dominated by opposition members, with majority party non-executive members playing a non-active and arguably singularly unrewarding role. In the second, the political climate is such that a majority party is prepared to allow non-executive members to make the running in selecting scrutiny topics in the knowledge that an adversarial mode will not be used. In these circumstances, majority party members would be able to play a more pro-active scrutiny role, within the context of a more relax disciplinary regime. Again it is not an overstatement to claim that the effectiveness (and rewardingness) of scrutiny will stand or fall by the capacity of all party groups to develop new norms of operation.

Local representation/advocacy

  In principle, the idea of loosening group discipline so that non-executive members can "speak out" for the local communities which they represent even when what they say is out of line with current policy, seems politically feasible. Opposition members already do so, and it is not unknown for majority party members to find ways of making these views clear in public (even though this would rarely be carried through to a voting against a group line). There are a number of ways in which the local advocacy role could be facilitated in the assembly. The programming of "question time" periods at assembly meetings, in which non-executive members could question the appropriate cabinet member on any matter of local concern to them would be one way. A procedure whereby executive decisions which were perceived to have adverse local consequences could be requisitioned by non-executive members (either individually or by a specified number of members) prior to implementation, and discussed at an assembly meeting (or scrutiny panel) is another possibility. This kind of requisitioning procedure has already been introduced as part of Hammersmith and Fulham's cabinet/assembly system, introduced in advance of the legislation. if such opportunities were not abused, then there is a potential for a lively public exchange between cabinet and non-executive members over specific high profile executive decisions, with the possibility that the cabinet will be prepared to change their intentions.

  The problem is that it is often difficult to make a clear distinction between an implementation issue and a policy issue. Matters of local concern are not necessarily questions of how a policy is implemented; they may raise issues which challenge fundamental features of the policy itself. (eg the opposition of a group of local residents to a road proposal). Thus it is always possible that an exchange about a particular "local issue" that a councillor wishes to raise transforms into a debate about policy, in which case the political stakes are raised and the temptation for the opposition to exploit the issue politcally is intensified. Again there is the danger that if it is an "exploitative" scenario which develops, the majority party will change its attitude, and resort to "behind closed doors" group meetings as a way of exploring such issues. The opportunities established for local representation and advocacy within the assembly would then become an opposition-dominated process, at worst a ritualistic attack/defence occasion reminiscent of Prime Minister's Question Time.

Regulation

  Now that it has been accepted that regulatory activities should fall within the responsibilities of the assembly, many existing backbench members will be able to continue to emphasise the kind of activity which they currently find most fulfilling. Development control committees have long been popular with non-executive members (so much so that in the recent past there have been districts in which the planning committee has been composed of all council members). Other regulatory activities such as licensing also have their attractions. The Standards Committees which all authorities will be required to establish involve a rather different type of regulation, but again it would be expected that non-executive members (plus one or more external representative) would play a dominant role. Regulatory activities are rarely subjected to the degree of pre-meeting group constraints experienced by other committees. This situation would be expected to continue under the new arrangements.

Community networking

  If a local authority resolved to set up area-based decision-making machinery with executive powers (technically delegated to an officer) that would in itself make a major contribution to the role opportunities of non-executive members of all parties. Even if cabinet members were formally members of such bodies, reflecting their local base, it would be expected that non-executive members would play the lead role (eg chair of the area committee). A range of local executive decisions which would otherwise be the responsibility of the cabinet (and many of which would be likely to have been delegated to officers) would become the responsibility of local non-executive councillors, strongly influenced by local communities. Political control of the area committees would vary, reflecting the political affiliations of the local members involved in each case. But this would matter little given the kind of decisions involved. The cabinet would need some kind of "clawback" mechanism for local decisions which clearly had major policy consequences, but the use of this power would be very much the exception.

  Such machinery would have other advantages too. It would strengthen the legitimacy of the local councillor's advocacy role in the assembly (assuming the area committee was, as it should be, linked to some wider more locally representative type of community forum). At the same time it would limit the number of such issues which would be presented to the assembly, because many of them would now be decided at area level. Assembly meetings would then be able to concentrate on policy and scrutiny debate. Secondly the area committee/local community forum could provide the basis for locality-based inputs to (or local interpretations of) the Community Plan, thus strengthening the involvement of non-executive members in this aspect of policy formulation. It would embed the local councillor in a network of local organisations and individuals, strengthening the capacity for deliberative public participation and local democratic engagement.

  Current experience, however, suggests that whereas increasing numbers of authorities are already recognising the value of this kind of machinery, there remain many who see it as an erosion of the democratic right of an elected administration to make decisions "across the board". There are also many local councillors who would question the legitimacy of public involvement in area-level decision-making, seeing it as a challenge to their own election-based authority and representatives. Thus the likelihood is that the opportunities provided in the White Paper will be taken up by some authorities but ignored by others.

Administrative concern

  The key influences on the scope and job satisfaction of non-executive members will undoubtedly be the way in which a local authority allocates responsibilities between cabinet and assembly (and between cabinet and area) and the way in which party groups individually and collectively respond to the implications of new role definitions. But there are a number of more specific administrative choices which can strengthen the roles of non-executive members through the support provided.

    —  There is a substantive training implication and requirement. Some of the new non-executive roles—in particular the scrutiny role—are relatively unfamiliar. It would be unrealistic and counter-productive to expect councillors to "pick up the role as they went along". Early experience of the new system will be crucial in the speed with which it becomes accepted practice. Confused and ineffective scrutiny practices would not help. Of the other roles, the one with the most significant training implication is that of community networking—operating as the focal point of a participating local network—which is likely to be unfamiliar to many councillors.

    —  There is an important officer support implication and requirement. The White Paper argues that existing officer structures will be able to serve and service both executive and assembly, although it does acknowledge the case for a small dedicated group of officers serving assembly members specifically. There is an alternative view that the way in which chief officers and cabinet members will come to be drawn closer together makes the latter alternative an imperative. If they are playing policy and scrutiny roles in particular effectively, non-executive members will need the support of officers who are not associated with the executive, and can thus directly provide support without any conflict of interest. They will need access to independent (from the executive) legal, financial and professional advice, if they are to do their job properly.

    —  It hardly needs saying that other aspects of member support—secretarial, creche facilities, IT access, proper accommodation—will be essential in the new regime. For those authorities which have been slow to introduce or improve such facilities, the "break point" provided by the transition from one political management structure to another provides a real opportunity to redress the imbalance,.

    —  The transition also provides an opportunity to develop a fairer set out of allowances for all councillors, including non-executive members. Recent reports from independent bodies have recommended basic annual allowances for non-executive members (ie those with no formal position of responsibility) of between £5,000 and £7,500.

  It is clear that to enable non-executive members to operate effectively there will be costs. To some extent these costs will be balanced by the savings involved in the dismantling of the existing committee structures, although committees (in a more limited sense) and panels will remain part of the new system. But if the government is serious in its democratic renewal agenda, it will surely recognise that the kind of changes involved will incur costs, and will find ways to help authorities meet them.

CONCLUSIONS

  There is no doubt that in principle there is a demanding and potentially fulfilling job for non-executive members of all parties implicit in the provisions of the White Paper and the Draft Bill. But for the potential to be made a reality, there are three important conditions.

  (1)  Local authorities will need to allocate responsibilities between executive and assembly in a balanced way, and to ensure that power is not over-centralised in the executive and that the assembly is able to play a proper "checks and balances" role.

  (2)  Party groups on local authorities will need to relax group discipline, particularly in relation to freeing non-executive members to operate as scrutineers and local representatives on a more individualistic basis.

  (3)  Party groups will have to take a less adversarial approach to one another than is often the case, evaluating policies and arrangements "on their merits" and not using public arenas predominantly as an exercise in political conflict and exploitation, of opportunities.

  If these three conditions are sustained, then local authorities could behave in a refreshingly different way to the current dominant mode. Of course party groups will continue to meet, and to agree collective stances on issues of major importance. But this piece of realism is not incompatible with a new more open world of debate. We are not talking about the demise of party groups here, rather about a relaxation in discipline and a change in attitude to inter-party relations in public.

  If this is the scenario that develops, then the non-executive members of all parties are likely to enjoy the following opportunities.

    —  Influence on the cabinet through the power to debate key policy documents and proposals and to expect changes if arguments are convincing.

    —  Influence on policy formulation through selective participation on policy panels and the power of policy scrutiny.

    —  A crucial role in (non-adversarial) scrutiny of policies and decisions, both post-implementation and in appropriate cases pre-implementation, with the possibility of specialisation in particular services or activities.

    —  A dominant role in the council's regulatory activities.

    —  A heightened legitimacy in terms of local representation, with a new freedom to speak out in assembly meetings for the interests of local communities.

    —  An active involvement in decision-making at the local level—through area committees, linked to an active local participating network.

  This role set, could not possibly be construed as marginalisation. It is arguably a much more interesting set of activities than most current backbenchers enjoy. But it is right that this paper should end with a note of caution. There is an alternative scenario, already explored in relation to specific non-executive roles, in which the relaxation of group discipline and opening-up of debates from pre-orchestrated political constraints does not occur. The alternative "channel of influence" for a non-executive member of a majority party is the retention and indeed extension of the role of the party group. Local issues could continue to be brought to party groups, policies could be discussed there, and it would even be possible to establish some form of scrutiny machinery. But all these processes would take place in private, leaving the opposition (assuming there is a significant opposition) to carry out these activities in the formal sense. If there is mutual antagonism between the major parties, it would not be difficult for the majority party to vote through a system which concentrated power in the executive, minimised the power and responsibilities of the assembly, and used party group processes to meet the needs of the non-executive members. The quid pro quo would be—"you support us in the assembly, the scrutiny committee and in public—and we will allow you to influence cabinet decisions through more frequent and wide-ranging group meetings". Not an attractive scenario in democratic, renewal terms but a plausible "worst case" outcome!

2 July 1999





 
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