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

Examination of Witnesses (Questions 502 - 519)




  502. Good afternoon and thank you for coming. We have had your written evidence. We are concerned with standards this afternoon, although of course you will also have an interest in the structure, so there may be some questions on the structure from the Committee. Can I ask you if there are any particular points that you want to draw to our attention on either the standards or structure before we start questioning you?

  (Mr Kendall) If I could begin, thank you first of all to you and Members for inviting us to give evidence; we do welcome the opportunity on behalf of our Association. Perhaps I could make a few general comments particularly about structures and Richard Lester can deal with the question of ethical framework. Chairman, whilst the Association believes and says in paragraph 3 of our memorandum of evidence that the current system certainly does have strengths, particularly, as has already been mentioned, in terms of openness, the new proposals, we believe, do offer possibilities of a higher profile for leading councillors and that may be an important weapon in terms of equipping local government for its new community leadership role and secondly, Chairman, it does offer the opportunity of greater speed and efficiency in the decision-making process, but with certain important provisos which have already been touched on and we will come back to, I am sure. The second point, Chairman, which we have made in paragraph 4 is that the measures will not themselves re-invigorate local government unless they are seen to be part of a package of other measures, and those are set out in detail at the top of page 2 of our memorandum. In terms of political structures, could I say in respect of the scrutiny function that paragraph 10 of our memorandum of evidence does make the point that has already been touched on about the need to ensure a sufficiency of resources if the scrutiny function is going to be effective and meaningful to councillors outside the executive. From my personal experience, Chairman, members who are not likely to be part of the executive are very concerned that they are not sidelined, that they have a meaningful role, that they have input to policy development and the like, and in order to achieve that it will be very important to ensure that the scrutiny function is adequately resourced. It may be, as we have suggested in the memorandum of evidence, that the Government would even consider a duty on councils to ensure adequate resources for the scrutiny function. Local authorities are under an express statutory duty to ensure that monitoring officers have sufficient resources to carry out their roles and one can see the advantage of a similar provision in respect of the scrutiny function. In respect of the executive, the previous witnesses made a very strong point, which we would certainly support, about the need for an adequate audit trail in respect of decisions by the executive. I do think, Chairman, that the point we make in paragraph 12, particularly on page 4, is that it is very important if the local authority's statutory officers, the monitoring officer, chief financial officer and, in some cases, probably in most cases, the chief executive, the head of the paid service, had prior access to decisions by the executive before they were finalised. It is not adequate, in our view, as the commentary to the draft Bill suggests, that the monitoring officer must ensure that decisions are properly recorded and published. It is necessary, in our view, to ensure that there is proper prior access to decisions, the decisions are made on proper grounds, that those grounds are recorded and the grounds are properly published. I would not personally go so far as one of the previous witnesses in suggesting that all advice given to members of the executive must necessarily be published. I thought it was very interesting when the draft Bill on Freedom of Information was published a couple of weeks ago that the Government declined to make a similar provision in respect of central government departments in order to protect the policy development process and advice to ministers, and it does seem to me that exactly the same sort of argument could be made for local government in terms of giving advice to members of the executive. What is important, in my view, is that decisions are properly recorded, the grounds for making decisions are properly available to the public subsequently and that the statutory officers have prior access to decisions before they are made to ensure that all proper grounds are taken into account and nothing improper is taken into account. The last point on structures that I would make is in respect of officer support. The point was made near the end of the previous witnesses' evidence about the difficulties for officers in supporting both sides of the organisation. It does seem to me that the smaller the authority the more difficult that will be. I think where larger authorities are concerned, in practice separate cadres of officers will be developed for supporting the scrutiny function, but it is interesting to note—and it is a provision that we would support—that the chief executive and chief officers will continue to owe a duty to all members of the council, irrespective of which side of the fence they are on, and it seems to me that at that level that is a proper safeguard for ensuring that there is not a complete fragmentation and division of the officer structure, but below that level it would be quite reasonable and proper for separate cadres of officers to be organised to provide support to the executive and scrutiny. That is all I would say on the new structures.

  503. Mr Lester, do you want to add anything?

  (Mr Lester) Thank you, my Lord Chairman. Could I say that in terms of the need for a review of the code of conduct and a new ethical framework, I have noted that in Lord Nolan's report just two years ago he recognised that there was an enormous number of dedicated and hard-working people in local government, and I suggest, with respect, that we keep that in mind: 20,000 councillors and 2 million employees discharging responsibilities and £70 billion-worth of budgets a year. Having said that, it is true to say that there have been a few but highly publicised cases which undoubtedly give disquiet amongst the public and justify a fundamental review and a framework for dealing with misconduct. So far as the standards committee is concerned, we would strongly urge that the standards committee should be able to deal with much more than I think is intended under the draft Bill and perhaps assurance could be given in terms of passing a greater number of misconduct complaints to the standards committee by increasing the independent element of it. I know that one or two councils already have standards committees made up exclusively of independent members but I do not suggest that. I think it is very important that councillors have a stake in this and generally in the governance of the council as a whole. So far as the standards committee is concerned, we would strongly say, or would strongly question anyway, whether the executive should have a part in the standards committee, bearing in mind that the majority of issues are going to be raised in connection with decision-making. I would echo strongly the points that have already been made about the lack of reference in the draft Bill to powers of sanction on the part of standards committees. One assumes that this is going to be less than suspension or disqualification but it needs to be spelt out. Very little has been said about the monitoring officer and that is a key function, a statutory function, in the new framework. We very much welcome the enhanced role and responsibilities. We feel there needs to be a bar to the head of a service acting also as monitoring officer. We feel the monitoring officer should be legally qualified and be protected from dismissal. We know there can be easily difficulties in relation to the exercise of these functions. We also believe that section 5 of the statutory provisions on the monitoring officer should be thoroughly reviewed. It is not realistic to expect a monitoring officer to report to the full council every time, for a point of maladministration, whether it causes injustice or not, to be referred to every member of the council. So far as the Standards Board is concerned, there are two main points. First, we are concerned about the volume of work. There is no doubt the incidence of complaints is increasing and is likely to increase more so when this new framework is established, and the speed of process is worrying. If you look at the time it takes for the ombudsman to deal with complaints already, and bearing in mind that at the end of that we are adding, potentially at least anyway, an adjudication panel hearing and also possibly a high court appeal at the end of that, most of these matters, except the more serious ones, I suggest should be dealt with very quickly indeed and could be disposed of within the proper framework by the committee.

Sir Paul Beresford

  504. If I could put two little questions on what Mr Kendall said, and then a broader one, you made the comment that one of the positive aspects of the Bill was that it would allow—this is my interpretation of what you said—personalities to rise to draw and attract an interest in local government. Would you not agree that that happens now in many cases, currently and in the past, and really it is the personalities rather than the system? The second small one: there was a comment made by you about the importance of the recording of decisions, etc. When the officials—and you have no doubt seen this—from DETR were here we asked for a definition of a decision and I foresee great quibblings in some of the district councils and so forth up and down the country on what is a decision. Could you give us a definition of that? Finally, and perhaps more important than either of those, the White Paper sets out a number of aims, if you like, and intentions. Do you think the Bill actually achieves those or is it going to be just another more complicated system with more strata within that system, and could we actually adapt the system we have now, if it needs adaptation, to meet these perceived problems?

  (Mr Kendall) If I could deal with that last point first, I think certainly there are improvements to the present system that could be undertaken which will be beneficial to local government. I am not sure, perhaps to link the answer with the first question that you raise, that the structure of local government as presently constituted is quite sufficient to give members that sort of profile that the Government actually envisage. I hear what you say about personalities. My personal experience is that most members of the local population in local communities may know who the leader of the council is, and I do emphasise the word "may", but will probably not know who the chairman of the education committee or whatever, the social services committee, et cetera, is, and part of the reason for that is that the function is to sit astride a complicated committee structure where there is a division of responsibility between political decisions and management by the officer structure. I would have thought that a process and a provision that actually consolidates that into one person who can take executive decisions may enhance the status of that individual in the locality and I do not think, with respect, that that is entirely a matter of personality. I am not sure if I have answered all your questions.

  505. The second one was asking for a definition of decisions. The more important one is really whether you feel that this Bill actually is meeting its aims.

  (Mr Kendall) I do not think on its own it will be sufficient to meet the Government's aims and I think, as the Association has said in one of its introductory paragraphs, it really has to be presented as part of a package of measures and if the other parts of the package are not present, I am not sure the Bill in itself will be successful.

Mr Gray

  506. I have two quick points. On this question about the secrecy of the meetings of the cabinets, in your evidence you say in a rather mild way that whilst this may be the norm, why is it essential. Could I invite you to go one stage further to suggest that those meetings should be in public because if they are in private, they are fulfilling the functions currently fulfilled by group meetings?

  (Mr Kendall) I think the criticism which is often made of the proposals is that if meetings are held in private and decisions are made in private, there is a loss of democracy and I do find it, with respect, quite difficult to follow that argument. What seems to me to be important is that those who make decisions in private are publicly accountable for those decisions and that really relates to the point which not only I have made, but previous witnesses have made about the audit trail of decisions, ensuring that those decisions are properly recorded and that we have a clear indication and a list of what matters are taken into account.

  507. But surely your whole profession is to produce minutes which are acceptable and understandable and may well not reflect the discussions which have taken place, and at the moment the press can listen to the council having a barney, having a discussion across the floor in the chamber and the press can actually record what people said and why that decision was then taken. Under this circumstance, all that you will have is a piece of paper which will say, "After a heated discussion, it was decided to...blah, blah, blah, blah, blah", so surely there is a reduction of democracy there because people will not know why the decision had been taken.

  (Mr Kendall) Well, it seems to me that it depends on where you draw the line in terms of those matters which are absolute decisions of the executive and those which are subject to scrutiny. Part of the scrutiny function is to enable an examination by members of the scrutiny committee of the executive of the reasons why they actually made the decisions, so I do not actually see a difference in substance, but a difference in form perhaps.

  508. Staying on a similar sort of point then, this question about the confidentiality of the advice given by officers to councillors, I understand the point about there is no reason why it should be public in many instances, but, for example, in planning decisions it is often very important that the officers have recommended one thing and the councillors have decided the opposite, particularly when it comes to an appeal.

  (Mr Kendall) Yes, and can I say that the Government seem to recognise that point by suggesting that planning applications should be dealt with or because they are of a quasi-judicial nature or the function of determining planning applications is of a quasi-judicial nature, the Government proposes that the traditional committee process should be retained for development control purposes for planning applications and I think we would support that and I do not see any difficulty at all in that.

Dr Whitehead

  509. You have mentioned in your evidence, paragraph 48, a potential overlap of a number of functions of the Standards Board, the Adjudication Panel, District Audit, ombudsmen and internal disciplinary arrangements. Is there not, in your view, a possible further overlap between the scrutiny functions and the ethical standards function where scrutiny may simply decide whether a policy is a good or a bad thing, it may decide whether an executive decision is a good or a bad thing, and it may decide that the process is unsatisfactory, but may then presumably decide that not only is the process unsatisfactory, but it is also being done in an entirely reprehensible way?

  (Mr Kendall) Yes.

  510. At what point does one merge into the other and should there be something in the legislation which tells people when to stop, when to hand over to another body?

  (Mr Lester) I think that could very well form part of some of the regulations and statutory orders that the Secretary of State might make, but clearly there will be a point in the scrutiny exercise when it comes up against a point which may relate to misconduct. I think at that point the committee needs advice as to how to refer that to the standards committee.

  511. Would there be, as you suggested by regulation, a trigger point or merely a suggestion as to who may tread where?

  (Mr Lester) Well, I think it may very well be a matter for the monitoring officer to be aware of those proceedings through his colleagues and staff and to be in attendance at the scrutiny committee when that point is reached.

  512. Could I draw your attention to a possible second area of concern in terms of conflict of function and that is the relationship between what is an executive implementation and what is policy and what is the policy framework. No doubt you have seen from the document as it stands that there appears to be no close definition of that. Do you think that is something that certainly in terms of officers of the council will, as it were, come out in the wash or do you think that is something that requires perhaps closer definition in the legislation itself?

  (Mr Lester) I am not at all clear as to the extent to which in any of the models the council is going to be in a position to prescribe what elements of policy precisely will come to the council and what might in fact be dealt with by the executive on the lower level. There will certainly be some tensions between the two, I guess, in some councils and there is a balance to be struck and that will have to reflect the policies and aspirations of individual councils. The editorial to the Bill talks about certain major plans being dealt with by the full council, education development plans, land-use transport plans, and those are very important documents, but not the full extent of policy-making on the part of a council, and I think we need to be very careful indeed as to where that line is drawn because I do not think the intention is to allow the executive to, if you like, disappear over the horizon with policy-making at a lower level.
  (Mr Kendall) The fact that the language in the commentary is general, it says, "including such key plans as education development plans", et cetera, suggests a degree of flexibility to local government and I think would be quite welcome because different councils will come to different conclusions as to which matters should be referred to full council and which should be delegated actually to the executive or to the executive subject to scrutiny.

  513. Do you not see a potential problem for officers in actually having to hold the ring between the various arms of the council which are all claiming a responsibility for a particular course of action and particularly asking council legal officers to decide on these matters?

  (Mr Lester) I think, Chairman, that this is such an important point, if I may say so respectfully. The process is going to be relatively complicated between the council and the executive and the scrutiny, let alone the other committees involved, and I suggest in the memorandum that there is a need for somebody who is certainly at arm's length from the executive, perhaps the standards committee, to have a function in relation to determining disputes because it seems to me that this process is not going to work very well or not work at all unless the information flow process works fluently.

Earl of Carnarvon

  514. I have two completely different questions. One relates to planning which I understand and I have been listening to a lot of witnesses coming from London boroughs where back-benchers are saying that they do not get information and these are London boroughs which are already practising these suggestions which are in the draft Bill and they are finding that the officers are not giving them the information, they cannot get the information which they got before when there was a committee system. That is a point which has been made to us and several witnesses have also suggested that there should be a fourth model and that the fourth model should be the improved committee system which is an improved status quo really. Would your organisation go along with that idea?

  (Mr Kendall) Dealing first of all with the question of lack of information, in a sense I am a little surprised because it seems to me that London boroughs or any other local authority carrying out experiments and pilots under existing legislation are subject to exactly the same legislation on access to information as before the pilot actually began, so members' entitlement to information is not diminished at all. I would have thought that if the members concerned had approached the monitoring officer or the head of the paid service, he or she would be duty-bound to provide the information if they have a need to know.

  515. That is what we hope would happen, but it certainly was not the case with the group of people who came and spoke to us.

  (Mr Kendall) The second point, if I can deal with the fourth model, is that I think our Association would support that as an extra option. There is a lot of support within the Association for the strengths that exist in the existing committee structure, but I can see in a way that the Government would be reluctant to allow that unless it were very clear that the benefits were of substance and how that would actually be assessed would be quite a contentious process, I suspect.

  516. That is for the Government to decide, but your own opinion is that there should be a fourth model?

  (Mr Kendall) It is, yes.

  517. On quite a different point, and I have never served on an education committee, but have been a planner most of my life, if you have a scenario of the executive dealing with an education problem, possibly the closure of a primary school, the education officer would give advice to the executive committee and the same story has got to be told to the scrutiny committee, but the chief education officer apparently would not be able to give advice to it, so a different officer would probably have to give the advice, maybe the deputy education officer.

  (Mr Kendall) If I could just comment on that point of process, I am not sure, with great respect, that that is necessarily right because, as I understand it, the scrutiny committee will be entitled to call for evidence, amongst others, from chief officers and if the director of education or whatever he or she is called has given advice to the executive and a decision has been taken, then both the responsible member of the executive and the chief education officer could be asked to give evidence to the scrutiny committee to explain and justify. I think the very difficult practical issue will be, and we have touched on this already, the extent to which the options and advice given to the member of the executive has to be disclosed and that is the point at which I would differ slightly from one of the previous witnesses, but I certainly think, as I read the commentary to the draft Bill, that the scrutiny committee would be entitled to call for evidence from the relevant chief officer.

  518. And what would be the procedure, as you see it, after that? Would they have the information of the meeting that took place the week before the executive committee?

  (Mr Kendall) No, depending on how the Government responds to this point as to the disclosure of information, in my view, the scrutiny committee should come to a view as to whether the decision was right and proper in all the local circumstances or not and make a recommendation to the executive, and the provisions then provide for how any differences between the executive and the scrutiny are to be reconciled and in some cases that may obviously involve a decision of the council itself.

  519. Lastly, in relation to a mayor and the cabinet, really the mayor being a chief executive, but an elected one rather than a professional person, do you see a problem of clashing personalities here with the chief executive and a senior officer of the council having to work with someone who, we will not mention names, but around the country exists as being a supremo in his or her own right and maybe meeting people just by himself with no minutes?

  (Mr Lester) I think one of the things that we have not addressed and certainly the Bill does not address is the need at the same time as bringing in the new organisation to look at the kind of officer and functions you actually need and I guess there is a case for reviewing the functions of the chief executive in these circumstances, particularly if you have a very strong executive, and it may very well be that you move more towards a cabinet secretary type of function rather than somebody who is in charge of the implementation.

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