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

Examination of Witnesses (Questions 60 - 79)



  60. Nevertheless an area which needs to be very clear so the local authority know what they can and cannot do in terms of provision of public information on the pros and cons?

  (Mr Whetnall) Yes, you are right. That might also be something that the regulations should look at. There is obviously no requirement on the council, if it does not believe in it, not to say that it does not believe in it.

  61. Can I go on and just ask a question about costs of holding referendums. I just wonder if there has been any effort to make any assessment of the cost not just of the referendum itself but also the process that an authority might have to embark upon in drawing up its proposals and so on which will entail obviously time, especially if they are of the level of detail that Mr Hewitt was describing just now? Has any work been done to try and get some estimate of the costs which might arise if authorities choose to go down the elected mayor route?

  (Mr Whetnall) I think some of the consultation responses gave examples of costs incurred on voluntary referendums, including perhaps Brighton.

Lord Bassam

  62. Yes.

  (Mr Whetnall) Obviously it rather depends whether you are managing to combine it with another election. They were not frightening figures.

  Lord Bassam: £30,000 to hold a normal referendum on the future of Brighton and Hove Albion Football Club.

Dr Whitehead

  63. More than their turnout for the whole season. Could I come back, Chairman, on the question of who decides on how campaigning is to take place. The State of Massachusetts and a number of other states provide sorts of proposition books for both sides' arguments to be put forward and that is done in a neutral heading. Is that something the Government has looked at in terms of how a referendum might be conducted without getting into the muddy waters that Mr Burstow has suggested?

  (Mr Whetnall) Yes, there would have to be an analysis of what constituted fairness. There is the recent report by the Committee on Standards in Public Life which sets out the position on the use of resources to put forward one side or another's campaign. I am sure in working up the content of guidance and regulations we would have to look at that.

Sir Paul Beresford

  64. Going back to the petition, do you anticipate the local authority having to vet the petitioners for legitimacy?

  (Mr Whetnall) Yes, I imagine it would.

  Sir Paul Beresford: Which could be a considerable task. Five per cent of Birmingham is—

Lord Bassam

  65. Fifty thousand.

  (Mr Hewitt) Local authorities are under a duty now to ensure that, for example, the nominations of those standing for election are valid.

Sir Paul Beresford

  66. It is certainly different.

  (Mr Hewitt) It is. It has to be said that a number of authorities have differing practices on this but I think very few would go the whole hog of trying to validate the full five per cent of the petition.

Mr Stringer

  67. So are you suggesting against the petitioner's name would have to be their electoral registration number?

  (Mr Whetnall) That might be a basic check. That would be a requirement that limits the people who are eligible to petition. All this is a possible content of regulations under the power of clause 22 which clearly is among the things that we need to do a lot more work on.

Dr Whitehead

  68. Would professional petition gatherers be outlawed? A number of American states have allowed professional petition gatherers to set up in business.

  (Mr Whetnall) That is a proposition to look at.

Lord Ponsonby

  69. Presumably anyone can raise a petition, political parties, the council itself, the local newspaper or a tenants association or something. Presumably it is open to anybody to raise a petition. In the context of that, is not five per cent a little high as the threshold for requiring a referendum?

  (Mr Whetnall) Clearly representations about whether it is too high or too low are there in the consultation responses. It would be a bit surprising if a local authority wanted to raise a petition because it would have the power to trigger a referendum itself if that was the proposal it wanted to advance.

Mr Stringer

  70. Have you considered any other proposals, apart from petitions, to trigger this mechanism? As you stated at the beginning there is a great deal of enthusiasm or support for elected mayors, as testified by opinion polls, and for obvious reasons there is a great deal of resistance when it comes to elected representatives. Have you considered actually putting an obligation on to local authorities to test opinion via opinion polls and to use that as a mechanism? Clearly it is the Government's intention to move along this path, it is not neutral on the issue.

  (Mr Whetnall) There is provision, although it is not very prescriptive, as to the form of what is done in the clause which deals with working up the proposal which authorities are obliged to prepare. They should do so in a way which is consultative and open to the views of the community.
  (Mr Hewitt) It is clause 10. There is a duty to consult in drawing up proposals. Clearly authorities will take various steps to do that. Some have standing citizens panels that they can consult and have done things that way, others might commission research, it rather depends on local circumstances and where they are in terms of how they develop their own consultative machineries.

  Mr Stringer: I was making a slightly different point to consultation. I was taking the view that I believe to be the Government's view, that they would like authorities not to remain in the status quo but to move along the road particularly to elected mayors but also to executives. In a sense why put an electorate which is disillusioned with councils to the trouble, why not just put an obligation on to the council to hold an opinion poll and if that goes one particular way then make that the trigger that moves you to the referendum?

Mr Gray

  71. A focus group. Never mind the referendum, let us just do it with a focus group, a straw in the wind approach.

  (Mr Whetnall) I take the point of that.

Lord Marlesford

  72. I probably have not read sufficiently closely the document but can I ask how a referendum is set up in a particular form of government with the local authority? Can you then have a subsequent referendum to change it?

  (Mr Whetnall) There is a provision, so that everybody's mind is not taken completely off the business of Government, not to repeat referendums before five years.

  73. So that is the maximum frequency that would be allowed under the statute?

  (Mr Whetnall) Yes, as proposed.

Mr Stringer

  74. If any councils adopt the elected mayor model we are going to end up with the mayor as a member of the council elected on one electoral system and the other councillors elected by a different electoral system. Do you see any problems because of those different electoral mechanisms, or any advantages?

  (Mr Whetnall) It is not simply the difference in electoral arrangements that produces that possibility. Once you have a question on the ballot paper concerning the councillor who would be the mayor it is just possible that you would have a different outcome whatever the system of voting. It is clearly possible that the mayor may be a member of the majority party, or he or she will be working together with a hung council or a council with a majority which is different. As you say, clearly it would be a new situation and it would require work to produce a consensus on issues before budgets and policy frameworks could be agreed. Whether that is a problem or an opportunity depends on how you look at it.

  75. With my Lord Chairman's agreement let me try to marry this issue with the discussion we were having before. In a sense you have dipped your toe in the water with changing the electoral system for the mayor if there are three or more candidates I think. If what is being looked for is a more scrutinising council, and I think I have heard ministers say this, to break up one party states in parts of the country, has it been considered, or is it part of the responses that you have received, that you might break up that control on both sides of the council, the scrutinising side and the executive side, by introducing PR into the local elections?

  (Mr Whetnall) I think that the position remains as stated in the White Paper and in the statement that the Deputy Prime Minister made in the House when it was published that there is some move towards forms of PR or alternative voting systems in what the Government has done on devolution, what it is doing on London, and what it is doing concerning mayors. It is a question of seeing how those work. There are no proposals in this Bill to have the rest of the council elected on a PR system.

  76. Has there been much response in the consultation along those lines?

  (Mr Whetnall) A number of people have sent us postcards advocating PR for local government and some of the consultation responses developed the argument.

  Mr Gray: The Prime Minister is changing his view after last weekend.


  77. Can we move on to standards which occupies a large part of this Bill which we have not had a great deal of time to discuss with you. Personally I would like to know why so complex a system is proposed in this Bill for dealing with standards on allegations of impropriety and there are a number of issues arising out of that. It is adding to the number of the existing established bodies. If we are going to have the new mechanism why has the opportunity not been taken to look at the question of the surcharge? How are the auditors, the standards board, the ombudsman all going to fish in the same pool, possibly coming to different decisions? I might perhaps add to that what thoughts are going to be given to it to avoid the whole system being bogged down? Many people around this table have known situations where authorities have not been able to sign off their accounts because somebody has got an objection of little or no substance. It takes a great deal of time and a great deal of money to resolve all of these situations. It seems to me that we are not proposing to take this opportunity to (a) review the surcharge situation or (b) simplify the whole complaints procedure or bring it together under one head, it is an addition.

  (Mr Redpath) Chairman, you have raised a very large number of issues there. Perhaps I can just say by way of opening, the new framework has three principal components: statutory codes of conduct, the establishment of a standards committees in local authorities and the establishment of an independent national body, the Standards Board. The first two of those elements of the framework were recommended by Nolan and I am not aware of anyone who argues that we should not have introduced statutory codes of conduct nor that local authorities should be required to have standards committees. I think there is a broad consensus about that. Some people certainly have argued that establishing an independent national body, a standards board, is perhaps a step too far and an unnecessary elaboration on Nolan. I think in response to that, firstly it is worth bearing in mind that the Nolan recommendations actually included the establishment of a national set up, a set of tribunals which would hear appeals from investigations carried out by standards committees and which would oversee the operation of local authority standards of codes of conduct. So it is not as if the Nolan recommendations did not envisage some form of national apparatus. Ministers accept Nolan's view that the vast majority of councillors stay the right side of the line on ethical issues but they believe that this is an issue of such importance to the credibility of local government that we must establish an effective procedure for dealing with those few cases where a serious breach of the code has taken place. The issue is what is the best mechanism for doing that? Now there may not be many serious allegations at the moment, but there are some and they are dealt with at the moment by councils. It is quite instructive to look at the way some authorities deal with them. Quite often what they do is call in an independent person, very often a QC or someone suitably else qualified, who carries out the investigation. The council itself feels that it should not carry out the investigation because a degree of independence needs to be established. Then when the investigation has taken place they call in another independent person to consider the results of that investigation and decide what further action is necessary. So the council is saying "We do not think we are the people who should consider the results of the investigation either". So it is not as if local authorities at the moment, some local authorities, have not accepted the argument that they should not be engaged in this process of investigation and adjudication, that that is actually best handled independently. That does not take you a million miles from where we are with the standards board recommendation or proposal. I think the Government sees considerable advantages in having one national body providing that independent investigation and adjudicative role rather than a lot of councils making their own arrangements. I think they feel that it is more likely that the people who are subject to these allegations will be treated fairly and consistently by a single national body rather than a lot of separate local arrangements. To the extent that punishment or penalties are to be meted out, a degree of consistency as between the treatment of one councillor who has breached the code and the treatment of another councillor elsewhere who has been found to have carried out a similar breach of the code, there should be a degree of consistency there. It is not clear to us how that degree of consistency can be achieved if you allow local authorities to carry out these things independently. I think on grounds of public confidence, and fairness and consistency the Government is pretty clear that the standards board has a valuable role to play.

Mr Burstow

  78. One of the main arguments that Mr Redpath has been advancing is that basically the proposals are a translation of the Nolan Committee's proposals into law and that Nolan has advanced a number of arguments which are persuasive of ministers and so on and ministers are minded to put those into place. However, Nolan also recommended the bringing to an end of surcharge and the Bill does not address that question at all. It seems a fairly onerous new set of arrangements are to be put in place to deal with a few, in Mr Redpath's words, councillors but at the same time, if you like, the other side of the equation, the surcharge and the sanctions which are draconian compared with any other part of public service are to remain in place also. What is the thinking there as to why most of Nolan is embraced but that part of Nolan is not?

  (Mr Whetnall) Nolan's recommendations on surcharge were part of a set of proposals which envisage replacing it by a criminal offence of misuse of public office which the Home Office consulted on and they are working on how that might be framed. So those two proposals are to an extent linked and as I understand it they are getting near the point of taking their ministers' minds on how that might be done and we would then come back to the surcharge proposal.

  79. Does that therefore mean there may be some additional clauses for this Bill or it might be the subject of a separate Bill?

  (Mr Whetnall) I would not rule it out but the policy has not quite got to a decision on that.

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