Submission from Association of Democratic Services Officers (ADSO) to the Communities and Local Government (CLG) Committee inquiry into overview and scrutiny in local government
ADSO is a professional organisation established in 2009 to support those working in the democratic and governance roles within local authorities in England. We provide a range of benefits to our members, including professional qualifications and training. We operate regionally and have a national board elected annually. With over 950 members we have become an established voice for the sector. We encourage shared learning and building on best practice.
We very much welcome the opportunity to respond and look forward to the Select Committee’s findings. If there is any further information or assistance you require from us, we would welcome that opportunity.
Whether scrutiny committees in local authorities in England are effective in holding decision-makers to account
In our experience, the response to this question is mixed and goes to the heart of the problem. There are a number of issues at play here, none more so than the acceptance of scrutiny by those being challenged (the Executive). There is a careful balance to be struck – the ability to ensure that the decision making process is not delayed, balanced against the right of members not involved in the Executive decision making process to be able to critically challenge. It can be tricky. Some scrutineers have complained that scrutiny lacks teeth. Used properly, it can be very effective. The power of persuasion and the use of the tools open to scrutiny has resulted, in many cases, to improvements in service delivery. There are also a number of examples where scrutiny has influenced decision makers, which we highlight later. On the other hand, we hear from some scrutiny members who are disillusioned with the lack of effectiveness and their treatment by Executives. Resulting in a feeling of marginalisation, feeling ignored and the process appearing to be a waste of time.
The extent to which scrutiny committees operate with political impartiality and independence from executives
In the main, we have found that where scrutiny is effective where cross-party consensus has been achieved, namely during the operation of the scrutiny activity. Task and finish groups or detailed scrutiny reviews as they are often referred to, provide an excellent example of this. All authorities have the ability for minority party reports to be submitted to decision makers alongside the main scrutiny report where consensus cannot be achieved. Whilst some may argue they would not be frowned upon or even discouraged, they can be submitted. However, it is extremely rare for this to happen. This, we believe, demonstrates that consensus is far from unusual, but that should not make us complacent.
In areas where some scrutiny members feel their role lacks credibility and professional appreciation by the Executive, the divisions can be pronounced. Whilst we do not want to limit the local choice in the type of scrutiny function adopted in each authority, we are concerned that the level and effectiveness of such scrutiny is very much in the hands of the Executive in political control, whose interests may be in less and/or ineffective scrutiny.
That said, we cannot ignore the political realities. Local authorities are political organisations nor is this a new phenomenon. Healthy debate is a good thing, otherwise there would be no need for scrutiny in the first place. Where scrutiny is allowed to assess and review, including drawing on the public and experts and operate properly with support, consensus can be reached and views and opinions sometimes changed. We have a number of examples of good scrutiny activity, which demonstrates this.
In terms of the independence of the Executive, or rather internal group politics, this can be difficult. Like a lot things associated with scrutiny it depends on the issue, the culture of the organisation, the approach adopted by the authority, sensitivity etc. This applies to public engagement as well. If you select the right issue the public will
participate. Whilst not all scrutiny reviews excite the public, that does not make them any less or more important. Politically sensitive matters will inevitably draw attention and heighten tensions, sometimes within the same group. This can appear to pitch the Scrutiny Members against the Executive. London Borough of Lewisham’s scrutiny review of the Millwall FC decision is an example of an extremely sensitive issue being handled well. The legitimacy of the scrutiny role to ‘hold to account’ is key.
One might think that scrutiny in an organisation with an administration with a large majority would be easier. That is not necessarily the case. Again, we have to understand and appreciate the politics in order to understand how to address the issues, and it can vary. A group that is split may see that resonate in scrutiny activity. This may be indirect in that neutral matters are selected, that in turn results in frustration and a questioning of the relevance of the scrutiny function. Conversely, the tricky issues may be identified in an attempt to embarrass one part of the organisation. The role of officers is crucial here. Issues need to be considered on merit and an open mind held, where possible. Officers need to understand the politics but not get involved. They help select issues of importance and help councilors to drive a path through the review. They also have a key role in navigating a path through some of difficult scenarios such as timing of a review, approaches, terms of reference witnesses etc.
It is implicit in scrutiny that whipping of scrutiny meetings is not allowed, but it can be hard to detect as it can be very subtle. There is no better way to whip a meeting than through membership selection. Where officers believe procedures are not being applied appropriately they can discuss them with scrutiny members, the parties and leadership. This is often the case in organisations where there is a healthy relationship between officers and members, sometimes undertaken by the Scrutiny Statutory Officer. In some instances matters will be raised with the Monitoring Officer. The reality is the politics exists and we need to work together to ensure it is not obstructive.
Whether scrutiny officers are independent of and separate from those being scrutinised
This relates to the comments set out above. Local Government, along with all other parts of the public sector, has been asked to make significant reductions which we would suggest have been handled extremely well, particularly when considering their magnitude. Local Government is often acknowledged as the most efficient part of the public sector. These reductions have resulted in specialist support being reduced. Dedicated scrutiny teams are therefore becoming quite rare. The support tends to sit within Democratic Services or Policy Teams. Some organisations second officers from other areas of the Council to support scrutiny reviews but not from the area being scrutinised. That said, scrutiny officers no matter where they are located, can be drawn into some of the challenges highlighted above. The seniority and experience of the officers involved in supporting the function can have a bearing as to how those situations are handled and the success.
We believe that whoever provides the support an understanding of the organisation is helpful, particularly when identifying items for scrutiny, assessing how scrutiny can add value and encouraging pro-active scrutiny rather than reactive. In addition, it helps in the process of identifying options for reviews by securing understanding and seeking support, sometimes with the Executive. Scrutiny can be supplemented by expert advisers and/or witnesses, although there can be a cost. A truly independent scrutiny support might assist but that could have the converse effect and encourage even further divisions and create a ‘them and us’ approach. We believe that in order for scrutiny to be effective it needs to be valued and appreciated by the organisation. All officers should in one way or another support members and, similarly, engage with and understand the scrutiny function as well as governance arrangements more generally. Scrutiny should not be considered an add on.
We conclude that to impose one type of support is extremely difficult in the current climate. We have to be mindful that resources are increasingly being squeezed. Authorities need to be free to manage this in the best way they see fit, whilst protecting the integrity of the function. Those supporting the function need to be assisted in developing the skills to work in a demanding and often challenging area. They are sometimes sole advocates which can unfairly label them as part of the problem. Chief Officers need to recognise the importance of scrutiny and to utilise it as a number already do.
How chairs and members are selected
This is covered in part, above. Whilst it might seem odd to make the selection process entirely free from the involvement of groups, one option might be make the selection of scrutiny members a totally free vote for all members although scrutiny is bound by political proportionality rules. Some authorities stipulate the chair of overview and scrutiny will be selected from the largest opposition group, but this may be determined by the size of the majority. Ensuring scrutiny is representative is important. We also need to understand that smaller parties or independents are stretched and are unable to attend all meetings. The fact they may be unable to participate on all bodies they are appointed on to serve does not mean they should be not given the choice, but this has to be taken into account where places are rejected.
Whether powers to summon witnesses are adequate
Most authorities have a protocol for invitation and a number have engaged with organisations other than public sector organisations, such as utilities and transport providers. There are regulations that stipulate crime and disorder and health scrutiny where external attendance can be demanded. We believe there is a gap for private sector organisations providing traditionally public sector services. This needs to be addressed if true accountability is not to be lost. It is inconsistent and unfair. Whilst there is nothing to stop to providers from being invited they should not be allowed to ignore invitations. Such behavior is disrespectful. Co-operation and compliance with local authority governance and accountability provisions should be built into contracts to raise the expectation and require reasonable compliance.
The potential for local authority scrutiny to act as a voice for local service users
Scrutiny can and should act as a voice for service users, but in doing so needs to be impartial. By that we mean to deal with the facts. Very often, scrutiny committees, like councillors in their casework, are attempting to balance sometimes conflicting views. Councillors are often encouraged to use their local knowledge to help form and populate the strategic gaps for scrutiny reviews. Ward councilors often suggest topics for scrutiny reviews based on their experiences and those of their colleagues.
If scrutiny is seen purely as the voice of opposition then it will run into difficulties and become isolated and ignored. Enabling opposition to be heard can, however, be useful. As with Select Committees, scrutiny is at its best when it is inclusive, considers the evidence and makes a decision based on the facts. This process can, and should, include the views of service users, citizens and interested parties generally. There is ample of evidence of this taking place.
How topics for scrutiny are selected
The work programme is crucial and scrutiny members should be held more accountable for its content and implementation. There is very often far more listed for consideration than can actually make its way onto a scrutiny agenda. Ideally, scrutiny should avoid duplicating other alternative reviews going on within an organisation, whilst being mindful of them. A “less is more” approach is one we would advocate although that is sometimes easier said than done. Consensus on areas for scrutiny involvement throughout the organisation can also assist. Where this occurs some of the best scrutiny is undertaken. This often brings the best out of scrutiny as it is free to get on with its job.
Thus a professional relationship between the Executive and Scrutiny is important. We have to be mindful that this is not always possible, particularly where the Executive is being challenged. This can result in misunderstandings but we should always strive for mutual respect. We also need to be mindful that local authorities unlike other sectors, operate within the public eye, quite rightly so. Considering challenging subjects – where perhaps the public may feel disgruntled – can be a difficult. A mature organisation will be able to handle this even though it may not always get the balance right.
We would recommend an inclusive approach to scrutiny, with the opportunity for the Executive to suggest areas for review and consideration. There are a number of examples of Cabinet members being invited to participate in a work programme setting meeting, to set out their priorities for the forthcoming year and to listen to suggestions from scrutiny members. This has helped with the planning for pre-decision scrutiny more effectively. The caveat is that the final say should always rest with Scrutiny.
The support given to the scrutiny function by political leaders and senior officers, including the resources allocated (for example whether there is a designated officer team)
The Local Government Act 2000 placed a duty on authorities, through their Head of Paid Service – Chief Executive’s in the main – to ensure scrutiny was effective and properly supported. As we have discussed, one of the key roles of scrutiny is to hold the Executive to account. In practice, most Chief Executive’s have a much closer relationship with their Leader and Cabinet members through Executive arrangements, ensuring their policies and decisions are implemented. Whilst Chief Executive’s and all officers are obliged to treat all members equally, there can be conflict. There can also be a problem of perceived conflict or bias. This might explain how some of the tensions and misunderstandings can arise.
What use is made of specialist external advisers
A number of authorities have used specialist advisers for reviews such as in housing, regeneration, health and policing matters. The list is almost quite endless. Specialist advisers have been used to assist with reviews in their entirety, for specific elements of a review and to submit one-off pieces of evidence. A key factor can be cost. It is our experience that the Local Government family is very often willing to support colleagues where they can. Most authorities encourage this type of support which should be acknowledged and welcomed. There is a lot of experience within the sector which can and should be utilised.
The effectiveness and importance of local authority scrutiny of external organisations
Local Authorities are the focal point for their communities. Governments of all political persuasions have raised the importance of ‘place’ shaping, working with communities to deliver change and improvements, along with partnership working etc. This has resulted in scrutiny’s radar widening, having to take account of the variety of delivery models and service providers. This is not slowing either. There are excellent examples around heath scrutiny and those involving the police. Housing Associations have engaged. There is a gap, as highlighted above, with private sector organisations, but not all have disengaged. London Borough of Lambeth’s recent Govia Thameslink Railway handling of the Southern Rail crisis in a public forum, adding to the pressure brought to bear elsewhere, helps demonstrate to the wider public the relevance of the scrutiny function and the importance of the authority at the heart of the community. That said, Local Authorities require support to ensure proper engagement with private sector service providers otherwise it undermines the process. Accountability and openness and transparency should apply to all.
The role of scrutiny in devolution deals and the scrutiny models used in combined authorities
ADSO held a conference on devolution in 2015, focusing on governance implications. One of the key messages that came out of that session was that there was very limited sharing of information within those organisations. As one would expect, the key negotiations were undertaken by the Chief Executive’s and the Leadership. We think this can be explained by the very sensitive nature of those discussions. This is evident by the fact that a number of potential devolution deals have subsequently broken down. Could scrutiny have added value? Durham, the winner of the 2015 Centre for Public Scrutiny (CfPS) award for governance and scrutiny was commended for its work where it polled local people on the North East devolution deal which was then signed, subject to consultation.
We acknowledge that such discussions can be difficult and can understand why the Leadership would wish to lead the negotiations but that should not prevent scrutiny or members generally asking questions. Scrutiny could consider governance arrangements once the green light is given and could consider the implications of governance across the devolution area or combined authority. Joint scrutiny committees are not uncommon and a potential model. Similarly, a scrutiny committee following the Police and Crime Panel model could also work but it would be an additional layer and would require support as well as member time.
As has proven to be the case, this has not been an easy process for those who have attempted to negotiate a devolution deal.
Examples where scrutiny has worked well and not so well
There are a number of examples of good scrutiny. The 2015 CfPS award winners provide a good spread of activity. Durham is highlighted above. Lincoln and its work on poverty, Birmingham’s work on child exploitation and Calderdale’s People’s Commission on improving health, reflect different approaches on a range of complex and sensitive matters. They all considered matters of strategic importance to their areas. There are many more.
Conclusion
We have attempted to highlight some of the common challenges and to generate a discussion. An acceptance of scrutiny is crucial if it is to be able to operate effectively. There are a variety of ways this can be achieved and some recommendations are highlighted below.
- Some authorities hold regular informal meetings between Cabinet and Scrutiny members, which sometime include Chief Officers. This enables two-way dialogue and time to review the arrangements from both perspectives and we strongly recommend authorities to do so. Following on from this, the Scrutiny Annual report can be a rather tame affair. We would advise an acknowledgement of those joint working sessions, which should ideally highlight any improvements to the function which are agreed. Ideally we would want this process to be a constitutional requirement to increase the accountability of the Executive. However, we appreciate this could be counter-productive in some authorities. We would certainly recommend this as good practice.
- We also believe that the role of the Statutory Scrutiny Officer requires review. Whilst established to protect the function it can, for the reasons highlighted above, be a difficult position. We appreciate the financial position of authorities as well as the need for them to structure as they see fit but it is important that the function has the support of an officer with sufficient clout to overcome some of the challenges highlighted. We recommend making the Scrutiny Statutory Officer on a par with the Statutory Monitoring Officer.
- Whilst performance management alone is meaningless, meaningful targets for the scrutiny function may assist in it helping to gain credibility. It will also assist to ensure the function keeps on track and help demonstrate the value added.
- In terms of membership, we recommend a free vote for the selection of Local Authority scrutiny members. There are some risks with this approach but we believe it would set scrutiny apart and provide an opportunity to promote and demonstrate the non-partisan nature in which it tends to operate.
- Our final recommendation requires no changes at all other than learning. We are firmly of the view that there are a number of authorities and indeed members, who do not fully utilise the tools available to them through the scrutiny provisions or through their individual powers as elected members. The right to know governing access to documents, councillor call for action, call-in, pre-scrutiny, external scrutiny; are a few examples. We urge members to become familiar with the powers open to them and for authorities to assist members in order that they may fully utilise those powers.