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

Examination of Witnesses (Questions 520 - 540)



  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 decisions.

Lord Marlesford

  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 public.

  (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the expert advice of their scientific and medical people, so I am a little unclear as to which advice you feel should not be published and why.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 in place.

Lord Marlesford

  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.

Mr Burstow

  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 the executive.

  (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?

Baroness Thornton

  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.

Mr Burstow

  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?

Baroness Thornton

  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 functioning properly?

  (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.

Mr Pike

  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 the mayor?

  (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.

Mr Burstow

  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.

Lord Marlesford

  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?

Mr Pike

  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 coming.

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