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Part 8
Statutory Guidance Notes
(NB: These notes need to be read in conjunction with the
appropriate Article appearing earlier in this
Constitution)
A PART 2 ARTICLES
(1) Article 1 The
Constitution
1 Local authorities should ensure
that the Constitution describes clearly and in a readily
understandable form the way in which they conduct their business so
that anyone who has dealings with the local authority on any matter
can easily determine who is responsible for decisions in respect of
those matters and so that they can also easily determine how best
to make representations to the relevant person. The Constitution
should therefore, as far as possible, be written in plain language.
(Paragraph 10.3).
2 Local authorities should also
ensure that copies of their Constitution are widely and readily
available, for example at their other main offices, on their
website and in local libraries and it should be publicised from
time to time through the local press. To ensure that members of
minority ethnic communities and people with sensory disabilities
are able to read the Constitution local authorities should provide
for it to be available in a range of formats (eg large print and
Braille) and languages. (Paragraph 10.4).
3 The Constitution should be
drafted as a flexible document. For example, it should not be
necessary to produce a revised Constitution every time an ad-hoc
committee or sub-committee is appointed to undertake a particular
task. However, a Constitution needs to be sufficiently detailed to
allow anyone who has dealings with the local authority to use it,
either by reference to it alone or by reference to it and other
documents referred to in it (and for convenience available
alongside it), to determine who is responsible for the matter with
which they are concerned. It should also include the statutory
derivation of all the provisions of the Constitution (ie which
powers and duties they are made under) to allow interested parties
to check the Constitution against those requirements. (Paragraph
10.9).
(2) Article 2 Members of
the Council
(a) Members
Representational Role
1 All councillors represent their
constituents and this should become an even more important role
under a new constitution. Councillors (whether or not they are
members of the Executive) should play an important role in
consulting their communities on the development of policy, in
particular in reviews of best value; development of the Best Value
Performance Plan; the community planning process; and other local
initiatives, for example on community safety and local cultural
strategies. (Paragraph 2.2).
2 Local authorities will need to
ensure, particularly through overview and scrutiny, that
appropriate procedures are in place to ensure that councillors can
"feed-in" the views of the communities they represent to policy
development and decision making. (Paragraph 2.3).
(b) Acting Together as
Full Council
1 Local authorities will need to
give careful consideration to the role of the full Council under a
new constitution. In particular, the role of the Council in
determining the policy framework and budget is likely to require
changes to how the Council has traditionally conducted its business
(paragraph 2.8).
2 The Council meeting will be the
forum at which all members of the local authority (whether they are
members of the Executive or not) discuss and decide the local
authority's policy framework and budget. Local authorities will
need to consider how the role of the Council meeting in policy
determination can be enhanced, by considering:
- whether it might be appropriate for the Council to meet more
frequently at certain times of year and less often at others;
- how the structure and style of Council meetings may need to
change to allow for more debate on the policy framework, perhaps at
more than one stage in the policy development process, including
how the Executive should present proposals for the policy framework
and budget;
- what arrangements will be necessary to enable open and informed
debate on reports from overview and scrutiny committees; and
- how public participation in the Council meeting can be
encouraged (paragraph 2.9).
(c) Overview and
Scrutiny
1 Representing the views of
constituents should form an essential element of holding the
Executive to account and reviewing policy. It will be essential if
the local authority's policies are truly to reflect the needs and
aspirations of local people and if the Executive is to be
effectively held to account for the impact of its decisions on
local communities. (Paragraph 2.13).
2 All members of the local
authority, both within and outside the Executive, will need to have
access to training and development opportunities to ensure that
they can carry out their new roles effectively. In particular,
effective overview and scrutiny requires a change of culture in the
way councillors question decisions and evaluate policy. Experience
from local authorities who have experimented with Executive style
arrangements prior to the Act shows that effective overview and
scrutiny needs time to develop and training is needed to help
councillors understand and develop these new roles. Therefore local
authorities should ensure that all members of the local authority
have access to adequate training and development opportunities in
particular on overview and scrutiny. Standards Committees also have
a specific role to play in advising, training or arranging to train
members on matters relating to their local authority's code of
conduct. (Paragraph 2.14)
3 Local authorities will need to
ensure that the roles of councillors outside the Executive are
meaningful and well-supported. (Paragraph 2.15).
(d) The Budget and Policy
Framework
Introduction
1 The Secretary of State
recommends that local authorities should consider including the
following other plans and strategies for approval or adoption by
the full council.
- Food Law Enforcement Service Plan;
- the strategy and plan which comprise the Housing Investment
Programme;
- Local Agenda 21 Strategy;
- Quality Protects Management Action Plan; and
- the local authority's Corporate Plan or its equivalent (if the
local authority has one). (Paragraph 2.21).
2 Where a local authority does not choose for any such plan or
strategy to be subject to full council approval the Secretary of
State recommends that the plan or strategy in question should be
subject to approval by members of the Executive. (Paragraph
2.22).
General
3 The Executive should adopt an
inclusive approach to preparing the draft budget, plans and
strategies and to policy development more generally. It should
ensure that councillors outside the Executive (whether or not they
are a member of an overview and scrutiny committee) have the
opportunity to put forward proposals to them for the budget or
policy development. Overview and scrutiny committees should also
play an integral part in policy development and the Executive
should consult such committees regularly in the process of
preparing the draft budget and draft plans and strategies. In the
case of the Development Plan the Executive should consult all
bodies within the local authority which take development control
decisions. (Paragraph 2.29).
Partnership
Plans
4 Such plans need to be
negotiated and agreed by the relevant partners, and it would be
counter-productive if the full Council were, at the final approval
stage, to overturn elements of a plan or strategy that had already
been agreed with other local partners. Therefore, the Secretary of
State recommends that local authorities should ensure that there is
effective and regular consultation and communication between the
Executive, the relevant overview and scrutiny committees and other
members of the local authority during the development of plans and
strategies which need the agreement of partner organisations.
(Paragraph 2.33).
5 Local authorities should,
therefore, adopt protocols to ensure that any councillor who is
neither a member of the Executive nor the partnership responsible
for developing the plan or strategy has opportunities to feed their
views into the development of any such plan or strategy. (Paragraph
2.34).
Moving monies between
budgetary allocations
6 Once the budget has been
adopted by the full Council, the Executive will need to be able to
respond quickly to changing circumstances which might require
reallocation of funds from one service to another. A local
authority's standing orders or financial rules/regulations will
need, therefore, to include reasonable provision to allow the
Executive to reallocate monies within the budget. Those provisions
will also need to allow for situations where the Executive needs to
make an urgent decision which would otherwise be contrary to the
budget without reference to the full Council (see below).
(Paragraph 2.40).
7 The Secretary of State
recommends that provisions in a local authority's standing orders
or financial rules/regulations should enable the Executive to take
any decision which is contrary to or not wholly in accordance with
the budget or the capital plan providing that any additional costs
incurred can be offset by additional (unforeseen) income,
contingency funds ("reserves" and "balances") or savings from
elsewhere within the budgetary allocations to functions which are
the responsibility of the Executive. The Secretary of State advises
that provisions in a local authority's standing orders or financial
rules/regulations should not enable the Executive to incur
additional expenditure which cannot be offset in these ways without
reference to the full Council. (Paragraph 2.41).
8 Local authorities will need to
consider whether an upper limit to such virement should be set
(either as an absolute amount or as a percentage of the budgetary
allocations involved). Local authorities may also wish to consider
different upper limits for a different service allocations
particularly where funds are ring-fenced, eg by Central Government.
The upper limit(s) for urgent decisions will usually need to be set
higher than for non-urgent decisions. (Paragraph 2.42).
9 In setting such limits local
authorities should take account of the provisions in the Local
Authorities (Functions and Responsibilities) (England) Regulations
2000 which require that if the Executive is minded to determine a
matter contrary to or not wholly in accordance with the
budget/capital plan and any provisions made in standing orders or
financial rules/regulations that decision must be taken by the full
Council (see below). Therefore, if in its standing orders or
financial rules/regulations the local authority sets the
Executive's freedoms too narrowly this will require very many full
Council meetings. (Paragraph 2.43).
10 In addition, a local
authority's standing orders or financial rules/regulations should
include mechanisms for moving monies between budgetary allocations
for functions which are the responsibility of the Executive and
budgetary allocations for functions which are not the
responsibility of the Executive. (Paragraph 2.44).
Modification of the
Policy Framework
11 The local authority should, at
the same time as approving or adopting the plan or strategy in
question, agree which elements of it the Executive will have the
freedom to amend in the light of experience gained in implementing
the policy. Again the local authority should bear in mind that
non-urgent decisions (see below) which are contrary to the plans or
strategies agreed by the full Council must be taken by the full
Council. (Paragraph 2.46).
12 The Secretary of State
recommends that if the Executive makes any such modifications to
the policy framework then those modifications should be reported to
the full Council at the next available Council meeting. (Paragraph
2.47).
Decisions contrary to the
Budget and Policy Framework
13 The policy framework adopted
by the full Council on the basis of the Executive's proposals in
effect sets out for the plans and strategies the Executive is
responsible for implementing. Together with the budget it is
therefore the framework within which the Executive must work.
Therefore, if any person or body responsible for making decisions
in respect of functions for which the Executives responsible is in
any doubt as to whether a decision is contrary to the policy
framework or contrary to or not wholly in accordance with the
budget they should seek advice from officers. In particular they
should seek advice from the monitoring officer, chief finance
officer (Section 151 officer) or chief Executive as well as any
relevant chief officers. (Paragraph 2.50).
14 If the monitoring officer or
other appropriate officers advise that a decision is likely to be
considered contrary to the policy framework then the Secretary of
State recommends that the decision should be treated as if it is
indeed contrary to the policy framework and handled accordingly.
(Paragraph 2.51).
15 Similarly, if the monitoring
officer, chief finance officer or other appropriate officers advise
that a decision is likely to be considered contrary to or not
wholly in accordance with the budget/capital plan and provisions in
standing orders or financial rules/regulations in respect of the
budget/capital plan, then the Secretary of State recommends that
the decision should be treated as if it is indeed contrary to or
not wholly in accordance with the budget/capital plan and
provisions in standing orders or financial rules/regulations in
respect of the budget/capital plan and handled accordingly.
(Paragraph 2.52).
16 Overview and scrutiny
committees have a power to refer certain decisions made in respect
of functions which are the responsibility of the Executive but
which have not yet been implemented to the full Council to decide
whether the Executive decision maker should reconsider the
decision. Overview and scrutiny committees may wish to use this
option if, following advice from the appropriate officers, they
consider that the decision may have been contrary to the policy
framework. In such a case the Council could either:
- determine that the decision was contrary to the policy
framework and therefore a matter for them to decide and take the
decision themselves; or
- determine that the decision was not contrary to the policy
framework and therefore a matter for the Executive to decide. In
this case the Council would then have the option of requesting that
the decision maker reconsider the decision if they believe that a
different decision would have been more appropriate. (Paragraph
2.53).
Urgency
17 This procedure should only be
used if it is impractical to convene a quorate meeting of the full
Council in the time available before the decision must be made.
(Paragraph 2.56).
18 For some urgent decisions
there may be more than one relevant chairman of an overview and
scrutiny committee. The regulations require the agreement of only
one relevant overview and scrutiny committee chairman. Therefore
the Secretary of State recommends that each local authority's
Executive arrangements should set out protocols for determining
which chairman should be consulted for each category or description
of Executive function. (Paragraph 2.57).
19 Urgency provisions for
decisions which would be contrary to or not wholly in accordance
with the budget or the capital plan should be made in a local
authority's standing orders or financial rules/regulations.
(Paragraph 2.59).
(3) Article 6 Overview
and Scrutiny
Training, development and
support
1 All members of the local
authority, both within and outside the executive, will need to have
access to training and development opportunities to ensure that
they can carry out their new roles effectively. In particular,
effective overview and scrutiny requires a change of culture in the
way councillors question decisions and evaluate policy. Experience
from local authorities who have experimented with executive style
arrangements prior to the Act shows that effective overview and
scrutiny needs time to develop and training is needed to help
councillors understand and develop these new roles. Therefore local
authorities should ensure that all members of the local authority
have access to adequate training and development opportunities in
particular on overview and scrutiny. (Paragraph 2.14)
General
2 To achieve enhanced
accountability and transparency of the decision making process,
effective overview and scrutiny is essential. Overview and scrutiny
committees are the key element of executive arrangements. Their
roles should, therefore, include both:
- developing and reviewing policy; and
- holding the executive to account. (Paragraph 3.15)
3 Where an overview and scrutiny committee is reviewing the work
of another committee of the local authority it should not normally
scrutinise individual decisions made by such committees,
particularly decisions in respect of development control,
licensing, registration, consents and other permissions. In
particular a local authority will need to ensure such scrutiny is
not an alternative to normal appeals procedures. However, overview
and scrutiny committees do have the power to make reports and
recommendations on functions which are not the responsibility of
the executive and the Secretary of State recommends that this
should normally be used as part of wider policy reviews. (Paragraph
3.16)
4 Overview and scrutiny committees should be a key mechanism for
enabling councillors to represent the views of their constituents
and other organisations to the executive and local authority and
hence to ensure that these views are taken into account in policy
development. (Paragraph 3.17)
5 These committees are the main way by which the executive is
held to account in public for the discharge of the functions for
which it is responsible. They should have important roles in
reviewing the local authority's policies and other matters of more
general local concern and making recommendations either to the full
council or to the executive, on future policy options. (Paragraph
3.18)
6 The Secretary of State advises, however, that all but the
smallest local authorities should have more than one overview and
scrutiny committee, and that they should meet frequently (for
example on a monthly or six-weekly cycle). (Paragraph 3.20)
7 Overview and scrutiny committees should take a cross-cutting
rather than narrow service-based view of the conduct of the local
authority's business and therefore the aim should be for local
authorities to have, at any given point in time, a relatively small
number of such committees. (Paragraph 3.21)
8 Overview and scrutiny arrangements should be set out clearly
in the executive arrangements as part of the constitution to ensure
it is clear which committees are responsible for overseeing which
functions and policy areas: ie the remit and terms of reference of
each committee. The workplan for each overview and scrutiny
committee needs careful consideration and local authorities need to
consider how these workplans are decided upon, bearing in mind the
resources available, time constraints and the interests of the
local community. (Paragraph 3.22)
9 Overview and scrutiny committees should have considerable
flexibility to determine most of their workplan, particularly in
the light of changing circumstances. There should also be effective
protocols to ensure that the concerns of all members of the
committee (including members who are not members of the local
authority) are taken into account when deciding the committee's
workplan. In doing so they should bear in mind that on a day-to-day
basis any member of an overview and scrutiny committee has a right
to ensure that any item relevant to the remit of that committee is
placed on the agenda and discussed at a meeting of the committee.
(Paragraph 3.23)
10 In addition, the executive will often wish to request a
policy review study from an overview and scrutiny committee before
formulating its policies for submission to the full council for
approval. The executive should always consult and involve the
relevant overview and scrutiny committees in developing draft
policies to propose to the full council. (Paragraph 3.24)
11 Local authorities are, therefore, encouraged to consider and
adopt mechanisms for co-ordinating the work of overview and
scrutiny committees. Such mechanisms should be set out clearly in
the local authority's executive arrangements and constitution.
(Paragraph 3.25)
12 Overview and scrutiny committees are encouraged to consider
different approaches and formats for their meetings for their
different roles: scrutinising decisions and decision making;
reviewing policy; and investigating other matters of local concern.
(Paragraph 3.27)
Membership
13 In deciding the membership of
overview and scrutiny committees, local authorities will need to
take into account the particular skills and expertise required to
ensure that thorough and informed reviews take place. They should
consider whether to include those who are not members of the local
authority to bring outside views of the work of such committees.
(Paragraph 3.29)
14 Where there is a majority
group, local authorities might consider it appropriate to have all
or some of these committees chaired by members outside the majority
group. Overview and scrutiny should be constructive and not merely
be there either always to oppose the executive or to rubber-stamp
the executive's decisions. (Paragraph 3.30)
Consulting
others
15 Overview and scrutiny
committees should also seek advice from other committees of the
local authority. (Paragraph 3.39)
16 Moreover, the Secretary of
State encourages overview and scrutiny committees to seek views
from as many communities and interested parties as necessary to get
a balanced picture of the effects of policy and executive
decisions. In particular, an overview and scrutiny committee could
conduct a review of how certain decisions have affected a
particular community or area, taking advice from forums and other
community groups and representatives. (Paragraph 3.40)
The party
whip
17 Overview and scrutiny
committees are to hold decisions makers to account. To do so
effectively will require a change in the way members have
traditionally questioned decisions. Although this is a matter for
political parties to consider, both locally and nationally, the
Government believes whipping is incompatible with overview and
scrutiny and recommends that whipping should not take place.
(Paragraph 3.44)
Officers and overview and
scrutiny
18 To be effective, overview and
scrutiny committees must have effective and properly resourced
support from officers. Members will need help in researching the
policy area or decisions they are examining and in deciding which
avenues of enquiry to pursue and which witnesses to call.
Experience from local authorities operating interim overview and
scrutiny arrangements before the passing of the Act shows that
focused overview and scrutiny enquiries with a well-defined set of
aims, albeit often looking at cross-cutting issues, are generally
more successful than wide ranging enquiries. (Paragraph 3.45)
19 Local authorities should
provide overview and scrutiny committees with a discrete budget to
allow them, for example, to engage independent consultants to
assist in their enquiries or to cover the expenses of witnesses
they may wish to call. (Paragraph 3.46)
20 Overview and scrutiny
committees should seek the advice of the monitoring officer where
they consider that there is doubt about the vires for a decision.
An overview and scrutiny committee should also seek the advice of
the monitoring officer and other appropriate officers where it
considers that a decision of the executive might be contrary to the
policy framework. In the latter case, if, bearing in mind the
relevant advice, the committee decides the decision was contrary to
the policy framework and it has not yet been implemented, it may
refer the matter to full council. If the decision has already been
implemented, the committee should make a report to full council
suggesting any remedial action it considers necessary. (Paragraph
3.47)
21 Where an overview and scrutiny
committee exercises the power to require officers to attend to
answer questions or discuss issues it should also consider the
seniority of officers it would be appropriate to require to appear
before it. Local authorities may wish to adopt conventions that
overview and scrutiny committees would normally only require
officers above a certain grade to attend to ensure that more junior
officers are not put under undue pressure. (Paragraph 3.48)
22 Overview and scrutiny
committees should always bear in mind that when officers appear to
answer questions their evidence should, as far as possible, be
confined to questions of fact and explanation relating to policies
and decisions. (Paragraph 3.49)
23 Officers may explain: what the
policies are; the justification and objectives of those policies as
the executive sees them; the extent to which those objectives may
have been met; and how administrative factors may have affected
both the choice of policy measures and the manner of their
implementation. (Paragraph 3.50)
24 Officers may, and in many
cases should, be asked to explain and justify advice they have
given to members of the executive prior to decisions being taken
and they should also be asked to explain and justify decisions they
themselves have taken under delegations from the executive.
(Paragraph 3.51)
25 As far as possible, officers
should avoid being drawn into discussion of the merits of
alternative policies where this is politically contentious. Any
comment by officers on the executive's policies and actions should
always be consistent with the requirement for officers to be
politically impartial. (Paragraph 3.52)
Training and
development
26 Local authorities should
ensure that all those who undertake overview and scrutiny duties
(councillors, officers and any co-opted members of overview and
scrutiny committees) are given adequate training to adapt to their
new roles. Members of the executive, officers and other
stakeholders and experts should also receive training for
appearances to answer questions and discuss issues with overview
and scrutiny committees and in how to respond to the reports and
recommendations from overview and scrutiny committees. Standards
committees also have a specific role to play in advising, training
or arranging to train members on matters relating to their local
authority's code of conduct. (Paragraph 3.53)
Policy development and
review
27 The Secretary of State
encourages local authorities to make arrangements for policy
reviews with cross-cutting themes rather that focusing on single
functions. This will be particularly important in the community
planning process. (Paragraph 3.55)
28 Policy development and review
will benefit from input from all key stakeholders including the
local community and other local public, private and voluntary
organisations, and such organisations and representatives should be
involved in policy reviews by overview and scrutiny committees. In
particular local authorities and their overview and scrutiny
committees should pay particular attention to obtaining views from
"hard to reach" groups such as minority ethnic communities and
people with disabilities. (Paragraph 3.56)
29 Where an overview and scrutiny
committee includes people who are not members of the local
authority (without voting rights), the local authority should
ensure that the committee's standing orders enable those
representatives to have an opportunity to influence the committee's
lines of enquiry and workplan for the review in question.
(Paragraph 3.58)
30 The policy development and
review work of an overview and scrutiny committee will draw
directly from the outputs of scrutinising executive decisions and
proposed decisions. It should also involve the consideration of
policy themes and matters of local concern which may have potential
implications for the policies of the local authority. Executive
arrangements should also make provision for overview and scrutiny
committees to be consulted by the executive or full council about
issues falling within the remit of the committee. This might
involve the executive requesting an overview and scrutiny committee
to conduct an enquiry into a particular issue. (Paragraph
3.59)
31 Local authorities should also
consider whether policy development and review in relation to a
particular function or policy area should be carried out by the
same committee which scrutinises decisions in that policy area or
whether separate committees are needed for policy development
depending on local circumstances. The Secretary of State believes
that this is a matter for local choice. (Paragraph 3.60)
32 Local authorities will need to
make proper arrangements for the findings of such policy reviews to
be considered by the executive or other relevant bodies in the
local authority including the full council. (Paragraph 3.61)
Matters of wider local
concern
33 Local authorities should
consider carefully whether and how such reviews take place. In
particular, they should consider the roles of partnership
organisations that deliver services and will wish to consider how
they should be involved in such reviews. The executive and the
local authority should take account of the outcomes of such reviews
in developing the local authority's policy framework. Local
authorities should have local procedures and conventions for such
reports to be debated and, if appropriate, acted upon. (Paragraph
3.65)
34 The Secretary of State
considers that overview and scrutiny committees should, from time
to time, examine healthcare provision within their area, for
example as part of a view of the Health Improvement Programme.
(Paragraph 3.66)
Best value
reviews
35 Overview and scrutiny
committees should have a role in best value reviews. For
example:
- overview and scrutiny committees could have sole responsibility
for such reviews reporting to the executive and/or the
authority;
- responsibility could be shared between the executive and
overview and scrutiny committees; or
- an ordinary committee of the authority which includes members
of both the executive and the relevant overview and scrutiny
committees could be established to carry out best value reviews.
(Paragraph 3.70)
36 Where it is decided that an overview and scrutiny committee
is to undertake a best value review, local authorities should make
arrangements for such reports to be considered by the executive or
by the full council (or both) as appropriate. (Paragraph 3.72)
Holding the executive to
account
37 A key function of overview and
scrutiny committees is to hold the executive to account for the
discharge of its functions. This can have four principal
elements:
- scrutinising decisions which the executive is planning to take
(for example, those on the forward plan);
- scrutinising executive decisions before they are implemented (a
so-called 'call-in' mechanism);
- scrutinising executive decisions after they have been
implemented, whether shortly afterwards or as part of a wider
review of policy, to measure their effect; and
- reviewing the performance of the executive and the local
authority's senior officers. (Paragraph 3.73)
38 While overview and scrutiny committees must between them have
power to scrutinise all decisions of the local authority, it would
clearly be detrimental to efficient decision making if every
individual decision were as a matter of course before such
committees and therefore this should not happen. (Paragraph
3.74)
39 In addition, local authorities should also consider setting
limits in particular on how decisions made by officers can be
scrutinised individually. Such scrutiny of officer decisions should
occur only as part of a review of service plans or during the best
value process. However, it may be appropriate for key decisions
made by individual officers to be subject to individual call-in.
(Paragraph 3.75)
Scrutiny of proposed
decisions
40 Overview and scrutiny
committees should regularly review forward plans with a view to
deciding which, if any, of the forthcoming decisions they wish to
enquire into. Such an enquiry might consist of questioning members
of the executive and officers and seeking the views of local
stakeholders and other interested parties. The executive should
take into account any views expressed by overview and scrutiny
committees when determining the final decision. (Paragraph
3.76)
Call-in of
decisions
41 Local authorities should make
provision in the executive arrangements and standing orders, for
procedures by which members of the local authority can request that
a meeting of an overview and scrutiny committee be held to consider
whether or not to use these powers in respect of a decision made
but not yet implemented (a so called 'call-in' procedure). Such
provisions may include a standard period of delay before decisions
are implemented. Those provisions should ensure that there is an
appropriate balance between effectively holding the executive to
account, being able to question decisions before they are
implemented and allowing effective and efficient decision making by
the executive within the policy framework and budget agreed by the
full council. The provisions should ensure that a decision maker
could only be asked to reconsider a decision once. Day-to-day
management and operational decisions taken by officers should not
be subject to any call-in procedure. (Paragraph 3.78)
42 In addition, where the
executive wishes to take an urgent decision by seeking the
agreement of the Chairman or in their absence the Vice-Chairman of
a relevant overview and scrutiny committee (or where there is no
Chairman or Vice-Chairman of the overview and scrutiny committee,
with the Mayor or Deputy Mayor) that the matter is urgent the local
authority's call-in procedure should include provisions which
prevent such urgent decisions from being called-in or in any other
way delayed. (Paragraph 3.79)
43 Local authorities should also
agree how called-in decisions are responded to. If an overview and
scrutiny committee examines a decision and decides to recommend an
alternative course of action, local authorities should set out how
this should work. In particular local authorities should consider
the following questions:
- how should the executive (or other body within the local
authority as the case may be) respond?
- what should the timescale for such a response be? (Paragraph
3.80)
44 Local authorities should ensure that the executive
arrangements ensure that any call-in procedure is not abused or
used unduly to delay decisions or slow down the process of decision
making. In particular the executive will, from time to time, need
to take decisions which need to be implemented quickly. Local
authorities will need to develop local conventions and protocols to
prevent abuse of an overview and scrutiny committee's power to
recommend that a decision made, but not yet implemented, be
reconsidered. Local authorities should keep the operation of any
call-in arrangements under review to ensure that they are not
abused with an associated negative effect on the efficiency of
executive decision making. (Paragraph 3.82)
45 A call-in mechanism provides a process by which a decision
made but not yet implemented can be discussed at a meeting of an
overview and scrutiny committee within a specified timescale during
which implementation of the decision is suspended. A call-in
mechanism cannot circumscribe the power for an individual member of
an overview and scrutiny committee to ensure that any matter
relevant to the remit of the committee be placed on the agenda and
discussed at a meeting of the committee. However, the exercise of
the powers does not have the effect of suspending implementation of
a decision. Any call-in power for members to request a meeting and
suspend implementation of a decision must, therefore, be in
addition to the powers. (Paragraph 3.82A)
46 A safeguard which could be adopted as part of a call-in
procedure could be to include provision requiring a certain number
of committee (or local authority) members to call-in a particular
decision. (Paragraph 3.83)
47 Local authorities will need to consider, when designing such
mechanisms, that under normal circumstances where a decision
relates to a function which is the responsibility of the executive,
ultimately only the executive can decide the matter. (Paragraph
3.85)
48 To avoid the possibility of very many emergency council
meetings the Secretary of State recommends that overview and
scrutiny committees should only use the power to refer matters to
the full council if they consider that the decision is contrary to
the policy framework or contrary to or not wholly in accordance
with the budget. Where an overview and scrutiny committee refers a
decision to the full council there should be clear timescales set
out in the local authority's constitution within which the debate
should take place to avoid decisions being unnecessarily delayed.
(Paragraph 3.86)
(4) Article 7 The
Executive
Members of the
Executive
1 The Executive and its members
will have wide ranging leadership roles. They will need to:
- lead the community planning process and the search for the best
value, with input and advice from overview and scrutiny committees,
and any other persons as appropriate;
- lead the preparation of the local authority's policies and
budget;
- take in-year decisions on resources and priorities, together
with other stakeholders and partners in the local community, to
delivery and implement the budget and policies decided by the full
Council: and
- be the focus for forming partnerships with other local public,
private, voluntary and community sector organisations to address
local needs. (Paragraph 4.10).
2 These leadership roles will be particularly important in the
context of local strategic partnerships. Guidance issued by the
Secretary of State in March 2001 encourages local authorities to
convene local strategic partnerships. These partnerships should
then be responsible for the development and delivery of community
strategies. Local strategic partnerships should be built on
existing partnership activity and play a key role in addressing the
challenges of neighbourhood renewal. (Paragraph 4.11).
3 The Executive will also need to respond to any recommendations
and reports from overview and scrutiny committees. Where these
differ from the Executive's policy, the Executive will need to
justify the differences and its actions or change its policy, where
necessary seeking approval from the full Council. The aim should be
to seek how best to respond to the needs and aspirations of local
communities, seeking to resolve conflicts through clear leadership.
(Paragraph 4.12).
4 Where portfolios are allocated to individual Executive
members, consideration will need to be given to the specific briefs
and responsibilities involved. Broadly thematic portfolios will
help to ensure Executive capacity for tackling cross-cutting
issues. (Paragraph 4.13).
5 Just as much as councillors outside the Executive, members of
the Executive will need access to effective training and
development to ensure that they can carry out their new roles
effectively. This will be particularly important where functions
and decision making are delegated to individual members of the
Executive; for example in recording decisions. Members of the
Executive may also need access to training and development
opportunities to help them develop new relationships with officers
and with other councillors who are not members of the Executive.
(Paragraph 4.15).
6 The Executive may invite anybody it considers appropriate to
attend its meetings and to speak on behalf of an absent member of
the Executive. However, that person would not be able to take
formal decisions. Such a role might help provide an effective link
between the Executive and other councillors and could be an
effective developmental role for some councillors. If such roles
are adopted the Secretary of State advises that it would be
inappropriate for such members also to be members of overview and
scrutiny committees dealing with matters on which that person has
assisted the Executive. (Paragraph 4.17).
7 The Executive and its members can and should consult with
whoever they think appropriate. Indeed, the Executive will need to
take an inclusive approach to its work, particularly policy
development, by consulting with other councillors, overview and
scrutiny committees and the wider local community. (paragraph
4.18).
Delegated outside the
Executive
8 The Secretary of State believes
that the extent of delegation to officers should in general
increase as a result of new arrangements. Such delegations are
encouraged as a way of ensuring more efficient decision making and
of preventing the Executive from becoming overwhelmed by a large
volume of very detailed managerial, operational and professional
matters. The Executive, committees of the Executive and members of
the Executive should therefore consider carefully what functions
they delegate to officers to ensure that they have sufficient time
to focus on broad strategic issues. (Paragraph 4.21).
9 Such delegations should be
clearly set out within the context of a systematic scheme of
delegations and clear limits to those delegations in terms of
functions and budgets. (paragraph 4.23).
10 Where functions which are the
responsibility of the Executive are delegated to officers to other
structures outside the Executive, the Executive should nevertheless
remain accountable to the Council, through overview and scrutiny
committees, for the discharge of those functions. That is to say,
the Executive should be held to account for both its decision to
delegate a function and the way that the function is being carried
out. (Paragraph 4.24).
Individual
Decisions
11 Under Executive arrangements,
individual members of the Executive will, for the first time, be
allowed formally to take decisions. Executives should consider
carefully issues of legal responsibility and ensure that
individuals are clear what exactly they can and cannot do.
(Paragraph 4.42).
12 The Secretary of State
recommends that all Executives should put in place mechanisms or
protocols which ensure that (as with the Council, its committees
and sub-committees and the Executive and its committees) an
individual Executive member seeks advice from relevant officers
before taking a decision within her or his delegated authority.
Where appropriate, this should include taking legal advice,
financial advice and professional officer advice (particularly
about contractual matters) as well as consulting the monitoring
officer where there is doubt about vires. (Paragraph 4.44).
13 Decisions taken by individual
members of the Executive will give rise to legal and financial
obligations in the same way as decisions taken collectively.
Therefore members of the Executive should always be aware of legal
and financial liabilities (consulting the monitoring officer and
chief finance officer as appropriate) which will arise from their
decisions. To ensure effective leadership for the local authority
and the communities it serves, the Secretary of State advises that
local authorities should consider adopting arrangements to ensure
co-ordination of, and share responsibility for, Executive decisions
including those made by individuals. (Paragraph 4.45).
Officer
Support
14 Officers will continue to work
for and serve the local authority as a whole. Nevertheless, as the
majority of functions will be the responsibility of the Executive,
it is likely that in practice many officers will be working to the
Executive for most of their time. The Executive will have to
respect the political neutrality of the officers. (Paragraph
4.49).
Appointments to the
Executive
15 Local authorities should set
out clearly in their Executive arrangements the procedures for
electing the leader and appointing members of the cabinet (where
they appoint them) as well as terms of offices (if any) of the
elected leader and members of the cabinet (where they are appointed
by the local authority). (Paragraph 4.67)
16 The local authority should
consider how to frame such provisions so as to provide that
generally the elected leader and members of the cabinet would not
be removed from office as part of normal procedures for resolving
conflicts between the Council and the Executive. The local
authority's Executive arrangements may therefore include
arrangements for appointing the Executive leader and/or other
Executive members for a fixed term, subject to exceptional
circumstances such as change of control of the local authority
(particularly in hung or balanced local authorities). The local
authority will have to ensure that those arrangements include
provision for filling vacancies in the offices of Executive members
(including the Executive leader). (Paragraph 4.68).
17 In certain circumstances,
particularly in local authorities where there is no overall control
or with a majority of independent members, it may be appropriate to
devise arrangements for "rotating" the leadership on a regular
basis. Such arrangements must, however, provide for the full
Council to elect the Executive leader at the appropriate times and
therefore local authorities will need to take into account the
effect such arrangements could have on the frequency of Council
meetings. Such arrangements should not in any way compromise
efficiency, transparency and accountability in decision making.
(Paragraph 4.69).
Absence of the Executive
Leader
18 There is no requirement to
appoint a deputy Executive leader. Local authorities will therefore
need to ensure that appropriate arrangements are in place to cover
the absence of the Executive leader. (Paragraph 4.70).
Delegation of functions
determined by the Council
19 Where the full Council decides
some or all delegations for functions which are the responsibility
of the Executive they should ensure that the scheme of delegations
for those functions is sufficiently flexible to ensure the
Executive can discharge functions efficiently and effectively
without frequent recourse to the local authority to make amendments
to the Executive arrangements which will require a decision by the
full Council. (Paragraph 4.74).
(5) Article 11
Officers
Officers' Roles under
Executive Arrangements
1 A local authority operating
executive arrangements should have a professional chief executive
(who should be the statutory Head of the Paid Service) responsible
for securing and managing the professional body of staff needed to
deliver modern, effective, well-focussed services. (Paragraph
8.1).
2 Officers should be responsible
for day-to-day managerial and operational decisions within the
local authority and should provide support to both the executive
and all councillors in their several roles. (Paragraph 8.2).
Appointment and
Dismissal
3 (a) Where the full Council
makes the appointment to posts of Head of the Paid Service or Chief
Officer or Deputy Chief Officer, they should only do so where no
well-founded objection from any member of the executive has been
received; and
(b) where a committee or
sub-committee makes the appointment that committee or sub-committee
should include at least one member of the executive and the
committee or sub-committee should make the appointment only where
no well-founded objection has been received from any member(s) of
the executive who is(are) also a member of that committee or
sub-committee. (Paragraph 8.9).
The Chief
Executive
4 The core roles of the chief
executive (who should be the statutory Head of the Paid Service)
should be:
- overall corporate management and operational responsibility
(including overall management responsibility for all staff);
- the provision of professional advice to all parties in the
decision-making process (the executive, overview and scrutiny, full
Council and other committees);
- together with the Monitoring Officer, responsibility for a
system of record keeping for all the local authority's decisions
(executive or otherwise); and
- representing the local authority on partnership and external
bodies (as required by statute or the local authority). (Paragraph
8.14).
The Monitoring Officer
and Chief Finance Officer
5 In order to undertake these
roles, the local authority will need to ensure that the Monitoring
Officer and Chief Finance Officer have access as necessary to
meetings and papers and that members consult with her or him
regularly. (Paragraph 8.18).
Monitoring
Officer
6 Local authorities will need to
recognise under executive arrangements the importance of the
Monitoring Officer's key roles of providing advice on vires issues,
maladministration, financial impropriety, probity and policy
framework and budget issues to all members of the local authority.
The Monitoring Officer should also be the proper officer for the
purposes of ensuring that executive decisions, together with the
reasons for those decisions and relevant officer reports and
background papers, are made publicly available. (Paragraph
8.21).
7 Where such a Monitoring
Officer's report [about unlawfulness or maladministration]
is made the relevant Overview and Scrutiny Committee or Committees
should consider whether it would be appropriate to hold a short
enquiry into the matter which is the subject of that report prior
to the Executive's consideration of it. (Paragraph 8.23).
Chief Finance
Officer
8 Local authorities will need to
recognise under executive arrangements the importance of the Chief
Finance Officer's key roles of providing advice on vires issues,
maladministration, financial impropriety, probity and policy
framework and budget issues to all members of the local authority.
The Chief Finance Officer will also have an important role in the
management of the local authority, in particular by:
- contributing to corporate management, in particular through the
provision of professional financial advice;
- maintaining financial administration and stewardship;
- supporting and advising members and officers in their
respective roles; and
- providing financial information to the media, members of the
public and the community. (Paragraph 8.24).
9 Where such a Chief Finance Officer's report [about
unlawful expenditure] is made the relevant Overview and
Scrutiny Committee or Committees should consider whether it would
be appropriate to hold a short enquiry into the matter which is the
subject of that report prior to the Executive's consideration of
it. (Paragraph 8.26).
Arrangement of Officer
Support
10 Local authorities should
organise officer support in accordance with the following broad key
principles;
- all officers are employed by, and accountable to, the local
authority as a whole;
- support from officers is needed for all the local authority's
functions and the roles of the full Council, overview and scrutiny,
committees, the executive, individual members representing their
communities, etc;
- overview and scrutiny in particular will need to be properly
resourced and effectively supported by officers;
- day-to-day managerial and operational decisions should remain
the responsibility of the chief executive and other officers;
- local authorities should seek to avoid potential conflicts of
interest for officers arising from the separation of the executive
and overview and scrutiny role; and
- all officers will need access to training and development to
help them support the various member roles effectively and to
understand the new structures. (Paragraph 8.28).
11 In organising support for the executive, local authorities
will need to take into account the potential for tension between
chief officers and cabinet members with portfolios. It may be
helpful to arrange the officer and member responsibilities so that
they are not exactly coincident. (Paragraph 8.29).
12 Changing the local authority's member structures should, in
many local authorities, provide an opportunity to restructure the
officer corps to support members more effectively and, more
importantly, to deliver more efficient and effective services.
(Paragraph 8.30).
13 Local authorities should develop appropriate conventions
setting out the roles, responsibilities and rights of officers and
members and establishing the key principles governing
officer/member relationships. (Paragraph 8.31).
14 Overview and scrutiny committees need properly resourced and
effective support. Where the same officers are supporting both the
executive and overview and scrutiny committees there is the
potential for conflict overview and scrutiny committees will be
questioning the executive's decisions which will have been based on
officer advice. This might discourage officers from pointing an
overview and scrutiny committee to fruitful lines of enquiry. Local
authorities will need to draw up procedures for resolving such
conflicts of interest. (Paragraph 8.32).
15 The Secretary of State does not believe that a formal
separation of officer support between the executive and overview
and scrutiny is necessary. The Secretary of State recognises that,
particularly in smaller local authorities, it may not be possible
to separate support in this way. Local authorities should, however,
consider whether some separation of officer support is appropriate
when considering how to support overview and scrutiny committees
effectively. (Paragraph 8.33).
16 Where a local authority does decide to separate officer
support it should ensure that there is appropriate exchange of
staff between those supporting overview and scrutiny and others and
that all staff have rewarding career development opportunities.
(Paragraph 8.34).
17 Similar conflict may occur for officers supporting both the
full Council and the executive, particularly in the budget and
policy setting process. It is a matter for each local authority how
to organise support for the full Council in its roles and, in some
cases, it might be appropriate for there to be dedicated support
for the full Council. (Paragraph 8.35).
18 Most councillors will be spending more time consulting with,
and representing the views of, their communities. These roles will
also need officer support. Local authorities will need to consider
how to resource such support to ensure all councillors can
effectively represent their communities. (Paragraph 8.36).
(6) Article 12 Decision
Making
General
Background
1 The principal aims of executive
arrangements are to make decision making more efficient,
transparent and accountable so that local authorities can be more
open and responsive to the needs and aspirations of the communities
they serve. Central to executive arrangements there will need to be
effective access for the public to decision-making and
decision-makers. The key characteristics of effective access which
local authorities should follow are:
- it is publicly known who is responsible for decisions;
- it is publicly known what decisions they are planning to
take;
- people know how they can make an input to those decisions and
at what point in the process they can best influence them;
- people have access to information about decisions;
- people know what decisions have been taken and the reasons for
them; and
- significant decisions should not be a surprise to those whom
they affect. (Paragraph 7.1).
2 Key decisions which have significant effects within the
community or on interests outside the local authority will need to
be identified and properly consulted on. Such key decisions may be
delegated to various bodies within the local authority, including
officers but, no matter who is taking the decision the same
principles should apply. (Paragraph 7.2).
3 All decisions of a local authority (whether they are the
responsibility of the executive or not), will need to be made in
accordance with the following principles:
- proportionality (ie the action should be proportionate to the
desired outcome);
- decisions should be taken on the basis of due consultation and
professional advice from officers;
- respect for human rights;
- a presumption in favour of openness; and
- clarity of aims and desired outcomes. (Paragraph 7.3).
Decisions of the Full
Council
4 Development and agreement of
the policy framework should be an inclusive process involving the
public and other local stakeholders as well as all councillors.
(Paragraph 7.6).
Advance Notification of
Decisions of the Executive
5 The Constitution will be a
publicly-available document but local authorities should ensure in
addition that the scheme of executive delegations is separately
available in summary form to the public on request. This should be
sufficiently clear to allow the public to know broadly who is
responsible for which decisions within the executive and how they
can be contacted. (Paragraph 7.9).
6 With a move to a new
constitution, there should be greater dialogue between all
councillors, the public and other stakeholders than has often been
the case in the past. Wide participation is essential to an
effective local authority. Local authorities will need to ensure
that people know what decisions are planned and how they can
influence those decisions. In addition, the executive will need to
ensure that any decisions it takes are consistent with the agreed
policy framework and take into account the needs and aspirations of
the local community. (Paragraph 7.10).
7 To underpin these principles of
greater accountability and transparency, regulation 13 of the Local
Authorities (Executive Arrangements) (Access to Information)
(England) Regulations 2000 require the executive to set out its
programme of work in the coming four months, as far as it is known,
in a forward plan. The first such forward plan should be prepared
as soon as is reasonably practicable after the authority has
adopted executive arrangements. Regulation 12 requires an annual
statement to be published by the proper officer of the local
authority giving notice of when forward plans will be published for
the coming year, explaining what a forward plan is and how it can
be obtained from the local authority. (Paragraph 7.11)
8 The Regulations require the
forward plan to be made publicly available and in particular a
local authority executive should ensure that it is made available
to the relevant overview and scrutiny committee at least two weeks
in advance of the commencement of the period covered. (Paragraph
7.12).
9 The timing of the publication
of the plan should have regard to the cycle of meetings of overview
and scrutiny committees and electoral cycles (the forward plan
should not bind an incoming new administration although it would be
useful to make clear what issues will be in the "in-tray" of any
incoming executive). The forward plan cannot be an exhaustive list
of all decisions but it should give an indication of those
decisions which it is known the executive will need to consider in
the coming period, as well as relevant decisions which will be
delegated by the executive to officers or to devolved structures.
(Paragraph 7.14).
10 It will be for the potential
decision-maker to decide, in any one case, whether a decision to be
taken is likely to involve significant expenditure. In order to
assist potential decision-makers within a local authority reach
consistent and demonstrative objective judgements and to ensure the
public are clear about what is regarded as significant locally, the
local authority should agree as a full Council limits above which
items are significant. The agreed limits should be published. A
local authority is able to set different thresholds for different
services or functions, bearing in mind the overall budget for those
services and functions and the likely impact on communities of each
service or function. A decision involving expenditure or saving
above the limit for the service or function concerned would be a
key decision. (Paragraph 7.17).
11 In setting such thresholds, a
local authority will need to bear in mind the underlying principles
of accountable decision-making that there should be a presumption
towards openness so that local people have knowledge sufficiently
in advance of all those decisions which will be of genuine concern
to local communities. In particular, local authorities will need to
ensure that there is a consistency of openness between neighbouring
local authorities at the same tier. Thus, whilst there may be a
higher threshold set for certain matters in a large metropolitan
local authority than in a small shire district operating executive
arrangements, there should not be a wide discrepancy of approach,
for example, between similar districts within a county or between
neighbouring metropolitan boroughs. (Paragraph 7.18).
12 The second test for a key
decision focuses on those decisions which are not likely to involve
significant expenditure or savings but which nevertheless are
likely to be significant in terms of their effects on communities.
The Regulations require that a decision which is likely to have a
significant impact on two or more wards or electoral divisions is a
key decision. Nevertheless, local authorities should, unless it is
impracticable to do so, specify that they will treat as if they
were key any decisions which are likely to have a significant
impact on communities in one ward or electoral division. For
example, a council should regard as key a decision to close a
school or carry out roadworks (such as introducing or altering
traffic calming measures) in a neighbourhood, notwithstanding the
thresholds of financial significance and that there may be an
impact in only one ward. Where a decision is only likely to have a
significant impact on a very small number of people in one ward or
electoral division the decision maker should ensure that those
people are nevertheless informed of the forthcoming decision in
sufficient time for them to exercise their rights to see the
relevant papers and make an input into the decision making process.
(Paragraph 7.20).
13 In considering whether a
decision is likely to be significant, a decision-maker will need to
consider the strategic nature of the decision and whether the
outcome will have an impact, for better or worse, on the amenity of
the community or quality of service provided by the authority to a
significant number of people living or working in the locality
affected. Regard should again be given to the underlying principles
of accountable decision-making to ensure that there is a
presumption towards openness. While in broad terms, a key decision
for the purposes of this test should be regarded as something which
under traditional arrangements would have been referred to a
committee or sub-committee of the Council for decision, rather than
being delegated to officers, the Secretary of State recognises that
there are large variations in the levels of delegation in
decision-making by authorities at present. Local authorities should
seek, through consultation with other local authorities of the same
type and size, to ensure there are not large variations in the
level of openness between authorities in the future, and that any
convergence in the practice of authorities is in the direction of
greater openness. (Paragraph 7.21).
14 The Secretary of State is of
the view that any decision made by an executive in the course of
developing proposals to the full Council to amend the policy
framework would be a key decision within the definition in
regulation 8. Nevertheless, if a decision maker is of the view that
any such decision does not fall within the regulation 8 definition
then that decision should be treated as a key decision. Similarly,
where the executive has been granted power by the full Council to
amend any aspect of the policy framework then the Secretary of
State is clear that any decision to do so would also be a key
decision within the definition in regulation 8, but that if a
decision maker is of the view that any such decision does not fall
within the regulation 8 definition then that decision should be
treated as a key decision. (Paragraph 7.22).
15 Local authorities should make
widespread use of electronic media in disseminating a forward plan.
Where a local authority has a website, the forward plan should be
accessible on that website, together with relevant papers. Local
authorities should also consider the opportunities to ensure that
communities have advance notification of decisions which, whilst
they may not be of significance across the local authority as a
whole, will be of particular relevance to a particular locality
within that local authority. The use of electronic media should
assist in that respect. In particular, local authorities should
consider ways of allowing local people to comment electronically on
issues raised by the forward plan although they will also need to
ensure that local people without access to the Internet are equally
able to comment effectively to the local authority. (Paragraph
7.24)
Availability of Executive
Documents
16 The regulations necessarily
make clear that a report does not include a draft report. The
Secretary of State is clear that any attempt by a decision maker to
adopt an approach whereby she or he sought to take a decision
largely on the basis of a draft report would be wholly contrary to
the principles of accountable decision making described in
paragraph 7.3 of this guidance. Local authorities should therefore
ensure that decisions are taken on the basis of completed reports
which under the regulations must be made available to the public at
least five clear days before the decision is taken. Furthermore,
local authorities will need to ensure that circumstances do not
arise where a decision is claimed to be necessary under the special
urgency provision in regulation 16 only by reason of a failure to
finalise reports in time to allow the normal procedures to be
followed. (Paragraph 7.32).
17 Where there is extensive
delegation to individual members of the executive, the local
authority and the executive should ensure that issues which cut
across the portfolio of more than one member are tackled jointly by
those members or collectively by the executive or a committee of
the executive. In such cases the executive scheme of delegation
should ensure the involvement of these and, if appropriate, other
members of the executive in the decision-making process. (Paragraph
7.33).
Meetings of the Executive
and its Committees
18 A meeting under regulation
7(1)(b) and 7(1)(c) does not include a meeting which is convened by
members of the executive for the sole purpose for being briefed on
a particular issue by an officer. Thus, for example, where one or
more members of the executive meet with an officer merely to seek
clarification of a particular matter, that meeting need not be in
public. It does, however apply to all formal meetings of an
executive decision-making body. Regulation 7(2)(a) makes clear that
any key decision to be taken by the executive or a committee of the
executive must (subject to the usual rules on exempt and
confidential information) be taken in a public meeting. (Paragraph
7.36).
19 The underlying approach is
that a meeting of the executive or its committees should be public
if at that meeting key decisions are taken collectively, or where
there is a substantive discussion of such a decision, expected to
be taken collectively at a subsequent meeting. The timescale of 28
days in regulation 7(2)(b) is a proxy to allow the executive space
for early political discussions. However, in considering whether or
not to hold a meeting in public above and beyond the statutory
requirements, a local authority executive should have regard to the
underlying principles of efficiency, transparency and
accountability and to the approach for decision-making described
above. (Paragraph 7.38).
20 Local authorities should not
undermine the intention for open meetings, for example through
inappropriate delegation to individual members or officers.
Decisions should not be formally delegated to individual members of
the executive or to officers where the decisions are for all
practical purposes taken by a meeting of the executive or a
committee of the executive. The Secretary of State considered that
were this kind of delegation to occur, it would be inappropriate.
(Paragraph 7.39).
Recording and Publishing
Executive Decisions
21 Local authorities should
ensure that (as with the Council, its committees and
sub-committees) all decisions made by members of the executive
(either collectively or individually) are based on sound
professional advice from officers, including advice from the
Monitoring Officer and Chief Finance Officer where appropriate.
(Paragraph 7.43).
22 Where decisions are taken by
individuals, local authorities should ensure that their executive
arrangements include provision which makes clear when such a
decision is taken to be effective to provide certainty
(particularly for overview and scrutiny committees and call in
procedures). The arrangements should also ensure that decisions,
particularly those affecting third parties, are not acted upon
before they have been properly recorded and the operation of the
call-in procedures fully completed. (Paragraph 7.47).
B. PART 3 RESPONSIBILITY
FOR FUNCTIONS
Functions which are not
the Responsibility of the Executive
1 The Secretary of State advises
that where such matters are currently delegated to committees or to
officers then those delegations should continue. (Paragraph
5.11).
2 Where a local authority
delegates its functions to Committees or Sub-Committees the
Secretary of State considers that the number of Committees and
Sub-Committees appointed under Section 101 of the 1972 Act should
be kept to a minimum. To ensure that functions are discharged in
line with the principles of efficiency, transparency and
accountability the membership of such Committees should be kept
under review. The Secretary of State considers that the number of
members of such Committees should be kept to a minimum and should
be proportionate to the size of the local authority. (Paragraph
5.12).
Full Council
Functions
3 The Secretary of State
recommends that functions such as making byelaws and decisions
relating to rights of way should, generally, be the responsibility
of the full Council. (Paragraph 5.14)
Development
Control
4 The Secretary of State
considers that full exchange of information between the Executive
and any committee which takes development control decisions is
essential. The Executive will need to ensure that there is
effective two-way communication between them and any such committee
and should consult any such committee on successive drafts of the
Development Plan while policy is being formulated. In addition,
local authorities should consider including a member of the
executive, if possible with responsibility for the Development
Plan, on one or more committees which take development control
decisions although she or he should not normally be the Chairman.
(Paragraph 5.18).
5 A local authority's executive
arrangements should provide that these functions to require
information as to interests into land are not to be the
responsibility of the executive except to the extent that it is
necessary to exercise these powers in respect of actions which are
preliminary to the exercise of powers to make compulsory purchase
orders. (Paragraph 5.20).
Licensing, Registration
and Health and Safety at Work Functions
6 In many local authorities most
of the licensing, registration and health and safety functions will
be delegated to professional officers. Therefore, subject to the
volume of licensing and registration work a local authority has, a
single licensing and health and safety committee should be
appropriate. (Paragraph 5.23).
Local Choice
Functions
7 In determining the extent to
which local choice functions are to be the responsibility of the
executive, local authorities should follow the approach adopted in
the preamble to these notes above. (Paragraph 5.27).
Local Act
Functions
8 Local authorities should follow
the approach set out in the preamble to these notes above when
deciding whether or not a local Act function or a harbour function
specified in public and general Acts should be the responsibility
of the Executive. In particular if the function in question is a
licensing, consent, permission or registration function (including
development control functions) then it should not be the
responsibility of the Executive. (Paragraph 5.33).
Functions which may be
Appropriate for Either the Executive, the Full Council or a
Committee
9 These functions involve a
combination of delivery and implementation of the local authority's
policy, direct regulation of persons (with substantial discretion
as to the regulatory action) and policy and strategy development.
Therefore following the approach in the preamble to these notes
above a local authority's executive arrangements should provide
that these functions are to some extent the responsibility of the
executive and otherwise not the responsibility of the executive. In
particular such a function or action should not be the
responsibility of the executive where it involves:
determining an application from a
person for a licence, approval, consent, permission or
registration;
- direct regulation of a person (with substantial discretion as
to the regulatory action); or
- enforcement of any such licence approval, consent, permission
or direct regulation. (Paragraph 5.35).
10 Where a function or action involves preparation of a
strategic policy of the local authority, the local authority's
executive arrangements should provide that the executive will
prepare the draft plan or strategy (in consultation with overview
and scrutiny committees and others) for submission to the full
council to consider and approve. Otherwise a local authority's
executive arrangements should provide that these functions are to
be the responsibility of the executive. (Paragraph 5.36).
11 There should be full exchange of information between the
executive and the Council or committee which is responsible for
these functions or actions and the Secretary of State recommends
that local authorities should consider including an appropriate
member of the executive on such a committee. In addition where
these functions are currently delegated to officers they should
continue to be so delegated whether or not they are the
responsibility of the executive. (Paragraph 5.37).
12 Where the functions of making arrangements for the
determination of certain appeals (relating to school exclusions and
admissions and appointments to Council Tax Benefit and Housing
Benefit Review Boards) are not to be the responsibility of the
executive the local authority's executive arrangements should
provide that they will be discharged by the full Council.
(Paragraph 5.39).
13 To ensure consistency with Article 6 of this Constitution,
the Secretary of State advises that local authorities make
arrangements for the determination of appeals which ensure that
no-one who was involved in making the decision in question is
involved in the determination of the appeal. Appeals against
decisions of the executive, where there will be a measure of
collective responsibility, should not be heard by a panel which
includes any member of the executive. Local authorities should
consider the possibility of establishing an appeals panel from
which a small appeals committee for any particular case can be
drawn, no member of which was involved in the original decision.
(Paragraph 5.42).
14 The Secretary of State advises that a local authority's
executive arrangements should provide that the executive will make
appointments to outside bodies in connection with functions which
are the responsibility of the executive (eg housing, education,
social services, regeneration, etc) and all other appointments
should be made by the full Council, a committee or officer of the
local authority. (Paragraph 5.44).
15 Using the powers in Section 13(4) and 13(5) of the Act as a
local authority's Executive Arrangements should provide that the
functions to place staff at the disposal of other local
authorities, for example to facilitate the exercise of joint
arrangements, are to be the responsibility of the Executive except
to the extent that the staff are being placed at the disposal of
the other authority in relation to the discharge of functions which
are not the responsibility of the Executive of the authority
placing the staff. (Paragraph 5.46).
Functions which are the
Responsibility of the Executive
16 The Executive is able to
delegate functions to officers. A number of the functions which are
to be Executive functions have prior to the passing of the Act
often been discharged by officers, either because they are
operational or management decisions or because professionally
trained officers are necessary to discharge the functions. The
Secretary of State considers that the operation of executive
arrangements should, in many local authorities, lead to greater
delegation to officers. In particular, the executive should
continue to delegate operational and management decisions to
officers as well as decisions in respect of functions which require
professional officer training and skills. (Paragraph 5.49).