Examination of Witnesses (Questions 520
TUESDAY 6 JULY 1999
520. So the cabinet secretary would give advice
if asked, but could really be keeping a minute of what took place?
(Mr Lester) And be disseminating those
521. I would like to follow up this important
point on the publication of the advice of officers which Mr Kendall
particularly referred to. Mr Kendall, you say you disagree with
the previous witnesses. I am really more concerned with your agreement
or disagreement with the White Paper and point 6.3 in the White
Paper does say that the Government is inclined to make this information
(Mr Kendall) Yes.
522. You used the analogy of central government,
but surely there is the distinction in the sense of what we have
primarily talked about which is the decision made by local government
within their statutory remit in many cases rather analogous to
a decision made by central government where they do indeed publish
the advice, and the obvious example of course is planning decisions
where the inspector's report is published and another different
department would be MAFF and the Department of Health with all
the scares about food and all that where they not only publish,
but they rely on the expert advice of their scientific and medical
people, so I am a little unclear as to which advice you feel should
not be published and why.
(Mr Kendall) Can I first of all, Chairman,
in answer to Lord Marlesford's point make the distinction between
the planning function and other functions of the council.
Earl of Carnarvon
523. It is a separate issue.
(Mr Kendall) The Government make the
distinction that because of its nature, it would be dealt with
in what is really a traditional committee way and I think that
will continue and, therefore, there will continue to be access
to written advice from the planning officer to the committee on
planning applications. I think as far as other functions are concerned
which are not quasi-judicial in nature, it seems to me that it
is important for the development of policy that officers should
be able to give confidential advice to members of the executive
on options that they may wish to consider without fear of either
retribution or without prejudicing the process of policy development.
It seems to me that that is exactly the line which central government
has taken under the Freedom of Information Bill in terms of advice
to central government and I do not really see any distinction
frankly, provided the decision of the executive as a result is
properly recorded and disseminated and the audit trail is put
524. But are you thinking, for example, of the
allocation of resources or can you give us an example of the way
you would not see the advice as being appropriately published?
(Mr Kendall) Well, on a resources point
if the chief financial officer were to give the committee or to
give a member of the executive advice on when tactically it might
be best to incur expenditure or not, I am not sure that it would
necessarily be right and proper for that advice to be automatically
published. What I would expect is a final view of the executive
to be disseminated and for he or she to be held to account for
that to the scrutiny committee.
525. Do you not agree that for practical politics
there has to be a place in which the professional officer can
say to the member, bearing whatever title it is, that that member
has had the most stupid idea he has ever heard of? That cannot
be said in public, can it?
(Mr Kendall) You put it very succinctly,
my Lord Chairman, yes.
Lord Marlesford: But that is more likely to
be oral advice given in private than written advice.
526. I think we are in danger of thinking that
all advice at all times should be produced in writing and put
in the public domain.
(Mr Lester) I think that could very well
be the outcome of requiring it to be published, that you get more
and more advice privately and orally.
527. I wanted to come back to this issue of
planning and particularly seek your view of the apparent split
that is envisaged between the discharge of the quasi-judicial
role in determining applications and the planning-making role
of local authorities because it has certainly been advanced to
us in some of the written evidence we have received that this
will have the effect of short-circuiting a process that takes
place within local authorities whereby local authorities learn
from their quasi-judicial role for determining applications and
reflect that learning back into their planning at some later stage.
Do you think that is something that will be undermined by this
separation of responsibilities?
(Mr Kendall) I think that is a very strong
point and I have heard it said that the planning process, whether
local plans, structure plans and the like, should be subject to
the same traditional committee structure as planning applications.
Personally, I think there is every justification in that being
carried out by a member of the executive, particularly because
at a relevant part in the procedure there is an examination in
public, a public inquiry in which those plans and policies are
tested after public consultation, and I do not really see any
particular benefit in subjecting that part of the process to a
traditional committee process.
(Mr Lester) What I do not think is that the executive
member deciding the needs of a particular service, whether it
is funding a school extension or whatever, should be the same
person dealing with planning permission.
528. But the point I am seeking to explore and
certainly we have received representations of is that by quite
necessarily separating the two processes out when it comes to
determining applications, something is lost, that quite a lot
of issues that come up for development control, which may not
have been considered by members in determining the nature of their
unitary development plans, are then in some way only dealt with
by officers and not by members. I think there is a strong point
there that members will lose some of their ability to shape policy.
(Mr Kendall) I absolutely agree that
that is a strong point. One of the arguments that is sometimes
put forward for the scrutiny function is that there ought to be
a strong interplay between recommendations from the scrutiny committees
which may well include members who are sitting on traditional
planning committees and the executive, and it may well be that
recommendations in that way will in some way make up the shortfall,
but I do not have an easy answer to the point you make.
529. Paragraph 11 of the submission refers to
the role of the scrutiny committees and particularly deals with
the question of proportionality in terms of their composition,
and you raise the possibility there that a way of strengthening
the role of the scrutiny committees would be to remove the requirement
to have proportionality. I wonder if you could take us through
the logic or the thought process that led to you making that recommendation
and whether or not you have any other suggestions as to ways in
which the scrutiny function might be strengthened vis-a"-vis
(Mr Lester) I think that this point reflects
the views of some of our members in that where the executive already
have actually set up an organisation that reflects the draft Bill
where the controlling group takes complete control of the executive,
as indeed they are entitled to, they feel strongly that to give
the amount of public accountability and thrust that is needed
in the interests of the health of the organisation, that ought
to be led by the other groups. Now, as we stand at the moment,
the scrutiny function would have to be also the majority of the
controlling group and I think the trend will be for the scrutiny
to become rather benign rather than cutting.
Mr Burstow: So where you say in the last sentence,
"The Association believes the Regulations should be relaxed
to allow this", being different composition on the scrutiny
committees, are you saying that relaxing the Regulations does
not help because then the majority party still has its majority
and can still determine for itself what the composition would
be, and do you mean in fact actually changing the Regulations
to actually require a different composition on the scrutiny committees
to that which the council has as a whole?
530. Are you talking about whipping?
(Mr Lester) I certainly would prefer
the suggestion that has just been made, but I am a little bit
uncertain as to whether to suggest that as a requirement.
531. I am not suggesting it should be, and I
pick up the point about whipping because in a way you are very
silent on the question of whipping in this whole paper. A number
of other witnesses who have given evidence have been quite forthcoming
and quite bold almost in terms of drawing to our attention the
extent to which whipping applies in local government. Do you not
feel that there might be some scope for looking within the legislation
at least at some guidance to local authorities in terms of the
drawing up of their constitutions which would require at least
a greater degree of transparency in the use of the whip?
(Mr Lester) Yes, although I think it
is exceptionally a difficult area, but why not try?
532. I have two quite separate things I want
to ask you about and one is to do with the status and function
of the scrutiny monitoring. You mentioned briefly the problems
that small authorities might face in this and I wonder if you
could expand on that and whether you have got any ideas about
how they might best make this work. Linked to that is the status
of the monitoring officers, and where do you think they should
sit in the hierarchy of the local authority and if they are protected
in some way so that they cannot be sacked because they have upset
the powers that be, how would you deal with someone who was not
(Mr Kendall) If I could deal with the
last point first, I do not think in the memorandum of evidence
it was being suggested that employment should be protected absolutely.
It was a suggestion that the same protection given to chief executives
where an independent element in any disciplinary procedure should
be introduced should be extended to the monitoring officer or
to the chief financial officer. As far as the status of the monitoring
officer is concerned, I am sure there is no single answer to this.
My own authority which is considering setting up a pilot scheme
next year on an experimental basis is provisionally thinking of,
or advising members to think about, the possibility of the monitoring
officer being part of the senior officer board and the monitoring
officer having responsibility for ensuring the adequacy of the
scrutiny function so that you get a member of the executive board
supporting the executive, as it were, but also with responsibility
for ensuring the scrutiny function is properly safeguarded and
adequately resourced. As far as small authorities are concerned,
I really do not have a simple solution. It seems to me a very,
very difficult issue for those authorities which simply do not
have the resources to provide separate cadres for the scrutiny
function. I think it would be a very grave practical difficulty.
533. The second thing is that you will have
heard from the previous discussion about people's concerns about
the standards, the arrangements for dealing with complaints and
the ethical standards officer and the whole hierarchy of how it
is being proposed. One of the concerns which has been expressed
is to do with the political influence if you have, as it were,
a one-party state in an authority. Do you think that the structure
that is being proposed is actually protected from that because
of the complaints going in at a national level and then filtering
down? How do you think that stands up?
(Mr Lester) I think personally I would
much prefer a standards committee which was made up of a significant
number of independent members as well as councillors sharing the
process with the clear sign of impartiality and fairness according
to the consultative document and I think if that is set up and
obvious to the public because of the people that are actually
sitting on that committee, that is something that gives the public
assurance that the standards committee should do more. Clearly
someone has got to do the filtering if there is to be any filtering
and it is either going to be the standards committee or it is
going to be the Standards Board, but in a sense if it is to be
the Standards Board, and the Bill clearly indicates that that
is the intention, I would strongly suggest that the Board should
be given a framework within which certain issues should automatically
almost go back to the standards committee if only to avoid the
need for the ethical standards officer to prepare a report before
them in every case which does not seem to be the best use necessarily
of his time. I think the key to all of this is to actually set
up a standards committee which is concerned with the governance
of the council as a whole, the health of the council, its standing
orders as well as its framework and with a proper balance of outside
and inside input, I would suggest, free from party whip and, I
would suggest, free from political balance because I do not understand
what the purpose of that is in a standards committee, attracting
the confidence of the public to do much more.
534. In section 49 of your submission you refer
to the speed of process and it is a point we dealt with with the
ombudsmen right at the end of the last session. Do you think that
it would really need something to be there to allow for screening
or vetting or do you think there should be some timetable or how
do you feel this could be tackled because I accept that you make
a very valid point and you certainly give an appalling example
of one in eleven years which everybody must be concerned about?
The second point is that several times in your submission you
refer to the question of substitutes and you obviously voice some
strong concerns about that. Do you think that the Bill should
clearly define the question of substitutes and when and where
and how and should that be on the face of the Bill? In section
14 you refer to the mayor and it ties in in a slightly different
angle with substitution and you point out what happens if the
mayor is incapacitated or out of the way for any reason at all,
so do you think the Bill really needs something to deal with that,
recognising that we are, if we are talking of an elected mayor,
talking of a position of some power and not just a figurehead
with a chain around their neck? The final thing really, tying
in all those points, is having listened to your own session this
afternoon and the earlier one, are there any points that you now
would like to make to us where you feel we could suggest improvements
to the Bill, and we cannot amend it as we are only looking at
the draft, or is there anything that you have thought about since
making your submission which has come to light during the course
of the session?
(Mr Lester) I think the first point is
that as I was listening to the earlier debate, question and answer,
I do think that if the timetable for some of these processes could
be deadlined perhaps at each particular stage it would be in the
interests of everybody, but especially the councillor concerned.
So far as substitutes are concerned, I think it is an opportunity
to actually clarify the law anyway, but we assume that substitutes
would not be allowed in the executive and for the sake of consistency
and clarity not in the standards committee either.
(Mr Kendall) I think there is a strong case for the
Bill saying so, to answer your question.
535. You think the Bill should specifically
say in those two instances that there should not be substitutes?
(Mr Kendall) I do. I think certainly,
as Mr Lester has said, to have a substitute system for the executive,
given that there is a prescribed limit to the number in the executive,
seems to me absolutely inconsistent and there is a strong policy
argument for not having substitutes in the standards committee
in order to maintain consistency.
(Mr Lester) I think the substitute system has developed
really to try and preserve political balance on committees through
inability to attend and I think we indicated to your Committee
earlier that perhaps political balance is not a matter for the
standards committee anyway.
536. We do not allow substitutes here. Then
(Mr Kendall) I do not know what the Bill
can actually do to provide for a case where the mayor is disqualified
or dies mid-term. If he or she has a mandate by direct election,
that is very difficult to deal with unless of course there is
another immediate election for a replacement. That is the only
alternative, it seems to me, which would be possible.
537. Do you think there should be a procedure
for the recalling of the mayor?
(Mr Lester) It may be that an interregnum
of one of the executive members could be allowed for two or three
months to allow for further elections.
538. You could presumably have another senior
councillor in a particular post who takes over rather like the
Vice President of the United States?
(Mr Lester) Yes, and perhaps the elected
mayor could make that position clear at the start of his office.
Lord Marlesford: Would it not be better to have
a designated officer, not an officer in the Civil Service sense,
but an elected person?
539. Would it not leave a vacuum if the Bill
did not say so? Everyone accepts that you need to move further,
but do you just leave a vacuum where everyone suddenly says, "What
can we do?"?
(Mr Kendall) You clearly must be able
to designate somebody to act in his or her absence.
540. My very final point was have any gems of
wisdom come to you as you have sat here this afternoon or do you
want to write to us? We have got a very tight timetable.
(Mr Kendall) I think all I would like
to say, my Lord Chairman, is thank you very much for hearing us.
We have enjoyed it immensely and if anything does occur to us,
perhaps we could write to you in due course.
Chairman: Indeed and thank you very much for