Examination of Witnesses (Questions 40
THURSDAY 17 JUNE 1999
40. I suppose the question I am asking is are
you seeing that process as part of the constitutional working
of the council or something which takes place around somebody's
dining room table?
(Mr Whetnall) I think there could be
a provision, as I understand now there is in practice, at effectively
single party meetings, for officers to be present and to offer
advice. If that is what the council chose to incorporate in its
model such private meetings would be given a formal rationale.
41. Is it not rather a quaint idea that factual
advice and political advice are entirely separate?
(Mr Whetnall) There is policy advice
which is officials advising on which options appear to them to
be preferable. That goes on all the time.
42. You have got a little bullet point at the
top there saying "political advice to the executive remains
(Mr Whetnall) Yes. I do not think political
advice means policy advice in that context. The discussion of
officer advice in paragraph 3.63 about the publication of advice
from officers is the relevant one. It is recognised that there
are two sides to the issue and, indeed, there are chief executives
who take opposed positions on that. The steer there is that the
Government is inclined to make this information public alongside
factual material. If I could return to Mr Burstow's point about
the burden on the officer when a decision has been taken by an
individual. The second sentence of 3.64 does put the onus, and
I think it is necessarily the case, on the individual member who
has taken the decision to ensure that the necessary record is
created and is made available to the monitoring officer. I think
all the existing pressures arising from the possibility of judicial
review, the possibility of an ombudsman review for maladministration,
will continue to support the proper recording of decisions and
the reasons for decisions. It is part of the SOLACE response,
the idea that a chief executive of the council should have the
responsibility to ensure there is an effective system of recording
of advice and recording of reasons for decisions. Even if that
were not formalised in the Bill the pressures to have that material
properly there on the record would include the fact that the ombudsman
might well find maladministration where it was not there, and
the courts might overturn the decision on judicial review if it
was not effectively documented with public policy reasons as to
why it had been taken.
43. There have been a lot of questions asked
about the division of responsibilities and references in the White
Paper to legislation providing for those because the Bill does
not actually provide for lots of those things. Is there not a
case for the Bill to provide for the division of responsibilities?
(Mr Whetnall) On the part of officers?
44. No, on the part of members of the executive
and the rest of the councillors.
(Mr Whetnall) Following it all the way
back to the opening of the line of questioning, I am not absolutely
sure what is meant by "division of responsibilities".
Is it under the American system that the elected mayor may appoint
his political staff from outside membership of the council?
(Mr Whetnall) If that is what it means,
It is a fundamentally different system. By analogy with the Westminster
model one could argue that it is not strictly necessary, to ensure
effective separation of executive and scrutiny, that the members
responsible for either should not also be jointly members of the
same council with votes which count equally on the fundamental
issues of budget setting and all the rest of it. I do not think
that it necessarily follows that you need absolute separation
for an executive and scrutinising wing to co-exist effectively
on one council. It is after all what happens in the House of Commons.
Chairman: Are Members happy to move on? Are
there any other points on planning or scrutiny or can we move
on to referenda?
Sir Paul Beresford
46. Just a final one. If I could take us back
to 3.64, will there be a legal definition of the word "decision",
or is there one? How major or how minor will it be? One can foresee
huge squabbles in a small district council over whether a decision
was a decision or was not a decision.
(Mr Whetnall) I think I would want to
take legal advice on the need to define it. Surely it is the point
at which the council commits resources or takes a step which has
an impact on the outside world?
47. However major or minor?
(Mr Whetnall) Yes.
48. Can I follow up on this. In 3.63, I was
trying to find where that is in the draft Bill, the conclusion
now that the advice of an officer should be published.
(Mr Whetnall) I think one of the things
we still need to do to the Bill is to add some material showing
how Part V(A) of the 1972 Act would work in the new circumstances.
That needs to be worked through so that the rules on transparency
are clear; it is not in the draft Bill at the moment.
49. It would be quite helpful to have that before,
if we are considering the Bill. It would be helpful to have that
rather than waiting until the Bill is published in its legislative
(Mr Whetnall) Yes, it does not exist
in draft form at the moment but we note the observation.
50. The provisions for referendums require them
to be established on the basis of a five per cent petition effectively
if a council itself does not declare a referendum for the establishment
of a mayor. Two questions. Firstly, how do the arrangements for
a referendum impact upon other arrangements the council may or
may not have reached for getting into place scrutiny and so on,
if the council itself does not trigger the referendum? Secondly,
if one of the purposes of the mayor and the referendum is to enhance
public interest in the process of local government and increase
their involvement with it, should there not be some sort of turnout
threshold in the referendum itself to validate it and thereby
bind the council in its decision making processes?
(Mr Hewitt) The question is what happens
to, as I understand it, any arrangements the council had designed
before it was forced to do something else.
51. Or indeed is designing now.
(Mr Hewitt) The presumption on any of
the referendums in any of the circumstances in the Bill is that
the referendum will take place on the basis of a fairly detailed
set of proposals and that will be quite a lot of work to work
up. After all you are talking about broadly what is the nature
of the scheme, delegations being required to what are going to
be executive functions and which are not, and what is going to
be the relationship in terms of checks and balances, if you like,
between the executive and the full council and the Standing Orders
and all the rest of it which will underpin all that. So there
is quite a lot of work to be done there but nevertheless I think
ministers have taken a view that ought to be done for there to
be a proper process in the referendum.
52. With respect, if the council has done nothing,
i.e. it is dragging its feet on new procedures, and then a group
of citizens get together a five per cent petition demanding a
referendum and win that, there will then be a requirement for
that local authority to have a mayor whilst the local authority
has done nothing to establish any procedures whereby that will
make it work?
(Mr Hewitt) I think the framework is
set up. The idea is that the authority would then be under a duty,
having taken receipt of such a petition, to then work up those
proposals so that the referendum can then take place. I think
the ordering would be slightly different from what you are suggesting.
53. If your referendum was triggered the local
authority would have to do the work and then hold a referendum?
(Mr Hewitt) Yes.
54. Is there a timescale set out for that or
would there be a timescale within which that must be held?
(Mr Hewitt) To date the ministers have
been concentrating very much on what the shape of the primary
legislation should be, understandably. There are provisions within
the Bill that allow for regulations to be made on referendums
and I am sure this is one of the things which will be dealt with
during that process.
55. What about threshold?
(Mr Hewitt) Sorry?
56. I mentioned the idea that logically one
might decide to pursue the idea of a threshold turn out to validate
(Mr Hewitt) It has been suggested by
some authorities in response to the Bill and clearly ministers
will need to take a view on that in the near future.
(Mr Whetnall) It has been done for some national referendums,
has it not, but not for others? I can see arguments both ways.
57. If the referendum is triggered, am I right
in reading that then the council has to work up proposals through
an elected mayor. It has not got an option to work up any of the
(Mr Hewitt) No.
(Mr Whetnall) That is right. The trigger requires
the council to conduct the referendum on the option for an elected
mayor which is the thing the petition is envisaged to trigger.
I think the role of the Secretary of State's regulations will
be to see that the question is fairly put and all the rest of
58. It might end up imposing something not totally
suitable perhaps for a particular locality.
(Mr Whetnall) I think there is nothing
to stop the council, if it profoundly disagrees with the petitioners,
from putting the counter argument that it would prefer a different
model, even though it is arranging a referendum that has been
triggered on the elected mayor model.
59. Can I just follow up that point. Are you
saying that the local authority itself would be allowed to use
resources to campaign for a different position?
(Mr Whetnall) That is a slightly different
argument, the application of public resources to campaign for
the advocacy of an alternative model.