Memorandum by Local Democrat Group at
the Local Government Association (LGA 12)
The LGA Liberal Democrat Group represents around
4,600 Liberal Democrat councillors in England and Wales.
PART II OF
We are regularly in contact with members of
authorities up and down the country who have implemented the new
political structures and we have therefore developed a good understanding
of how Part II of the Local Government Act 2000 is working in
practice. It is still early days as the first new constitutions
were only fully implemented in June 2001 and some authorities
are yet to move to their new forms of governance. It will no doubt
take some time for the new structures to bed down and for the
full effect to be known, but early indications are that overview
and scrutiny is the part of the new political arrangements that
local authorities are finding most difficult.
We have not undertaken a survey about how Cabinets
are working, however we are aware of some issues.
The time required to devote to council
business by Executive Members tends to lead to responsibility
being taken by those who have the time, rather than those with
the best abilities.
Overview committees do not allow
members to acquire in-depth knowledge of a particular policy area.
Overview committees tend to examine selected parts of policy only.
Some authorities are questioning how future Executive members
will acquire the detailed knowledge that they will need to take
on a Cabinet position.
On some authorities Cabinet meetings
are used by Executive members to make self-congratulatory announcements
that are not part of the agenda, and to lie about the opposition.
Although these statements are made in public, if opposition members
are not permitted to speak at Cabinet meetings they are powerless
to refute them. The system allows this to happen and leaves opposition
councillors in these authorities feeling demoralised, powerless
and without any opportunity to put their own side of the story
on record. Some Councils allow opposition leaders to speak at
Cabinet meetings, although they are of course not able to vote.
In these authorities the abuse of the Cabinet position is not
possible and any misleading or untruthful statements can be corrected.
The LGA Liberal Democrat Group carried out research
on overview and scrutiny during the summer of 2001 through a survey
of Liberal Democrat councillors and political researchers in local
government. It was clear from the responses that most local authorities
are struggling to make overview and scrutiny effective.
We asked respondents whether the recommendations
of their Overview and Scrutiny Committees influence the decisions
of the Executive. Although some authorities reported that their
Executives have taken recommendations on board there were many
where Scrutiny has no impact.
Those that feel that their Scrutiny Committees
have a real influence tend to be from authorities where a substantial
amount of pre-decision scrutiny is taking place. Members are effectively
being involved in policy development before the Cabinet members
come to their final decision. Making all the information available
to Scrutiny members, members of the public and stakeholder organisations
well in advance of a decision being taken is a key part of effective
pre-decision scrutiny and ensures that they are able to participate,
object or submit alternative proposals.
In many authorities the work of the Overview
and Scrutiny Committees has no impact whatsoever. Respondents
to our survey made comments such as "The Executive is influenced
by Scrutiny only if it agrees with it", "To date the
Executive has never been influenced by a scrutiny decision"
and "Scrutiny is merely seen as a hoop which the Cabinet
has to put up with before it can implement its plans". It
is clearly difficult for non-Cabinet members to engage fully and
enthusiastically with the new political management arrangements
if they feel that they have no impact through Scrutiny.
The responses to our survey showed that authorities
do seem to be following Government recommendations that whipping
should not be used on Overview and Scrutiny Committees. Some local
authorities have gone further than this and have prohibited it
in their constitutions. Although there may not be formal whipping
we have evidence that members of groups often vote together and
that scrutiny is used for political purposes by administration
parties and opposition parties at least some of the time. The
Government's intention that Scrutiny members should feel free
to exercise proper and "independent" scrutiny is not
working in practice for a whole host of different reasons:
Scrutiny is the only part of the
new decision making system where non-Executive members can challenge
the Executive. Under the Committee system opposition members and
others could challenge the administration's policies or performance
in public at the point the decisions were being made in Committee.
This challenge now takes place in Scrutiny or not at all as any
issues that are not part of the policy framework cannot even be
discussed at full Council. Given that the majority of councillors
are part of a political group they need to be able to engage in
political debate at some point in the process. For the majority
of members this can only take place in an Overview and Scrutiny
Committee but is contrary to the Government's intention to take
the politics out of scrutiny.
Scrutiny is being used in some authorities
by opposition members as an opportunity to embarrass the administration
or to raise issues that they can use for political campaigning
Call-in is being used by some members
to enable an alternative view to the Executive's proposals to
be expressed in public, even though they know that they will not
win the argument.
It is not just opposition members
who are using the scrutiny process for political purposes. Members
of the administration party on some councils use their majority
on Scrutiny Committees to rubber-stamp Executive decisions and
to block any criticism of their colleagues. It was reported from
one authority that this has happened to such an extreme that the
teacher representatives on the Education Scrutiny Panel now refuse
The fear of retribution is preventing
some non-Executive members of the ruling group from carrying out
an effective scrutiny role, even if there is no formal whipping
on the Scrutiny Committee.
Conversely, disaffected ruling group
members can seize upon Scrutiny as an opportunity to take "revenge"
on their Cabinet colleagues.
Local authorities have far less members
than the House of Commons, on which the local government Executive/Scrutiny
model is based. Personal relationships between local authority
members are much closer than in the House of Commons, making it
more uncomfortable for members to challenge the Executive. In
the House of Commons there are plenty of other opportunities,
for example debates during the passage of legislation and opposition
day debates, when members can engage in political debate. This
enables the politics to be taken out of Select Committees.
Scrutinising policy or the decisions
of the Executive is a very different process from participating
in a decision-making committee. Members are having to learn new
skills and a new approach. Behaving in committee mode is not conducive
to effective scrutiny. It is not just members who need to learn
new skills if scrutiny is to be effective, but also officers.
Submitting the same report to a decision-making Cabinet and to
a Scrutiny Committee, which is the practice in many authorities,
will not assist members to become more effective scrutineers.
The role of the two bodies is different and requires reports to
be written from a different angle.
Because Overview and Scrutiny Committees
can only advise, they have no "bite" and there is no
effective opposition to Executive proposals.
In our questionnaire we asked about officer
support for the Scrutiny function. The overwhelming experience
is that officer support is minimal or non-existent. Reports for
scrutiny members are generally written by the officers that are
responsible for the services, rather than officers that are seen
to be "independent". Many respondents felt that lack
of officer support is at least partially responsible for the current
ineffectiveness of scrutiny. If there is insufficient officer
support it is not possible for authorities to carry out comprehensive,
detailed investigations such as those carried out by the parliamentary
The effectiveness of scrutiny is being reduced
in some authorities by the procedure agreed in their constitution.
Although we would not want an authority's decision-making process
to grind to a halt because of excessive use of call-ins, Government
guidance is quite clear that councillors must have the opportunity
to call-in all but a few very urgent decisions. The constitution
has been set up in some councils in such a way that it is difficult
to call in decisions, for example by specifying that members of
all three political parties need to sign a call-in request. If
the ruling group's scrutiny members refuse to co-operate as they
do not want their colleagues to be embarrassed this makes call-in
impossible. We also know of one authority where severe restrictions
have been placed on the number of overview and scrutiny meetings
and on the number of items that any member can call in during
a year. Opposition members in such authorities are becoming hostile
to the new political arrangements.
The conclusions that we drew from our survey
are that the authorities that are succeeding in making scrutiny
effective and that have members who are satisfied with the process
are often those that blur the Cabinet/Scrutiny split in a way
that the Government did not intend. Consensus is reached and options
worked through by Party groups before formal proposals are made.
This involves all members, keeps them engaged in the process,
and ensures that the whole decision-making process does not grind
to a halt through call-ins.
Around two thirds of referenda held so far have
resulted in the elected mayor model of governance being turned
down by local people. Some of the authorities concerned felt obliged
to hold a referendum as the results of the consultation on new
governance arrangements showed that although more people favoured
a leader and cabinet model, there was a fairly significant amount
of interest in the combined mayoral models.
We are aware from our contacts with many authorities
that there is a great deal of confusion about how the results
of consultation should have been analysed. We know of a number
of cases where councillors were advised by their officers, quoting
from the guidelines on consultation that they should hold a referendum.
"New Council ConstitutionsConsultation Guidelines
for English Local Authorities" says, "if there is
significant minority support for either or both of the mayoral
options then opinion should be tested by holding a binding referendum
for one of the mayoral options, with the leader and cabinet as
the fall-back option" (p. 47). The guidance, "New
Council ConstitutionsGuidance Pack", on the other
hand only says that local authorities are "encouraged to
consider" the guidelines and other good practice guides on
We would question the validity of the suggestion
in the guidelines that the results of the consultation for the
two mayoral options should be combined when considering whether
to hold a referendum, when they are in fact very different models
of governance. Their common factor is having a mayor. It could
be argued that the consultation results of those favouring the
leader and cabinet, and mayor and cabinet options should be combined
as they both share the common factor of a cabinet.
As the guidelines were published along with
the guidance, with a similar design and almost identical cover,
they have taken on an authority in the eyes of councillors and
officers that they do not possess in law. This has persuaded councils
to hold referenda, at a great cost, when there is no real desire
for a mayoral system of government in their area.
Even in Southwark, where the Secretary of State
considered "that from the evidence available to him Southwark
has drawn up their proposal without having due regard to the responses
of the consultation", the referendum showed very clearly,
with a 68 per cent no vote, that there was no demand for a mayor.
The enforced referendum cost the authority around £215,000
A report published in The Times on 19
February 2002 suggested that the total cost of the mayoral referenda
so far to taxpayers is £2.5 million. In the two thirds of
authorities where the outcome was a no vote this is often seen
as a waste of money which could have been better spent on improving
Although this has not become an issue yet as
the first mayoral elections do not take place until May this year,
there is a real potential for conflict between the mayor and full
Council, where the majority of councillors are from a different
political party from the mayor. Whilst recognising that the mayor
has a direct mandate from local people, a political group that
has a majority of councillors has no less a mandate, yet the regulations
require the mayor's proposals to prevail unless two thirds of
councillors vote against them. A situation could arise in which
the majority party collectively won more votes than the mayor
but is unable to overturn the proposals of the mayor because they
do not have two thirds of the council seats. This would be certain
to have a very demoralising effect on the majority group. Having
gained the support of the electorate they would be rendered powerless
and unable to deliver their programme of policies.
In many Councils the outcome of the new political
arrangements is that there has been a reduction in political debate,
a reduction in the creation of solutions and in the exchange of
ideas by members of all Parties. Many members who are not part
of the Executive feel demotivated, excluded and unable to influence
decisions. This is leading to members questioning whether they
wish to remain as councillors.
PART I OF
Duty to promote economic, social and environmental
The freedoms introduced alongside the new duty for
councils to promote the economic, social and environmental well-being
of their area are broadly welcomed by authorities. We do not have
much evidence, however, that Councils are finding innovative ways
to use the new duty.
A County Council has questioned how
much change and improvement the new duty will deliver when so
many council services are so tightly controlled by the Government.
The Whitehall straitjacket that prescribes how education and social
services are run, together with financial constraints, make it
difficult to see how local authorities will be able to do much
more than tinker at the margins with the new duty.
We have also received comments that
Best Value, the myriad of statutory plans and other initiatives
are so time consuming that there is no opportunity to explore
how the new duty can be used. Authorities also feel uncertain
about how the duty can be used.
We know of a couple of authorities
that are using the duty to achieve objectives, including its use
in contract conditions to achieve social objectives.