Written evidence submitted by the Local Government Research Unit, De Montfort University [OSG 022]
Since its introduction through the Local Government Act 2000, overview and scrutiny (O&S) can be regarded as the Cinderella of the local government political decision-making system. Generally, across local government, O&S lacks parity of esteem and resources with council leaders and executives and this imbalance hinders its ability to operate to its full potential. The report, ‘The Development of Overview and Scrutiny in Local Government’ (Snape, Leach and Copus, 2002), even given its early publication, found good examples of effective and innovative scrutiny and laid down six conditions for powerful scrutiny which could contribute to the good governance of any locality:
These six criteria are however, far from always met as demonstrated by the vast range of experiences of O&S across local government and the scattered pattern when it comes to resources, esteem and effectiveness. Where these criteria are not met O&S is not only in danger of being unable to meet its potential to assist councils in governing their localities, but also serious failures of public services can occur, unchecked.
Prior to the 2000 Act the word’ committee’ meant more or less the same thing to councillors across the country. But the term overview and scrutiny can mean different things to councillors not only across the country, but on the same council: formal scrutiny committees, policy groups, task and finish groups, select committee style evidence sessions, seminar style events or question and answer sessions. It is in the array of different approaches to O&S that we see the flexibility and value of scrutiny and that good O&S is not a single meeting, but a series of events leading to a specific outcome. But, in far too many councils, scrutiny committees, agendas, reports, minutes and procedures resemble far too closely the more traditional committee system, meaning that the potential of scrutiny for thorough investigation is lost (Ashworth and Snape, 2004).
In framing the Local Government Act 2000 an assumption was made that if local government political decision-making was made to look like the centre – an executive and a parliamentary review process of executive action and policy – then local decision-making would improve. The flaw in such an approach however, was that it did not allow for the fundamental differences in the purposes and processes of local and central government, nor for the inter-play of party politics at the local level.
Shaping council decision-making in the mould of parliament and government does not guarantee a change in culture and as will be seen below, local government scrutiny has often inherited some of the poorer practices from the committee system and failed to fully grasp the benefits an executive and scrutiny distinction can bring.
Over ten years since the introduction of O&S councillors, across the country, still express feelings that they are distanced from the decision-making processes of their council and from the executive (Copus, 2016). Feelings of powerlessness among councillors have led some councils to revert to the committee system (see section 6). A sense of powerlessness experienced by councillors however, is not an inherent weakness in the O&S function, rather it demonstrates that O&S has not been fully developed, its powers left inadequate and its potential left untapped.
The rest of the submission presents evidence that has been drawn from a range of research projects and over 30 O&S consultancy reviews conducted for councils across the country since the passing of the Local Government Act 2000. The submission responds to the committee’s inquiry by setting out evidence on the effectiveness or otherwise of O&S through five themes which are examined in the sections that follow. The next section explores the adequacy of the powers and responsibilities of O&S by examining what makes for effective scrutiny; the third section examines the resources and support required for effective O&S; the fourth section examines scrutiny external to the council; the fifth sets out the impact of party politics on O&S. The submission concludes by making recommendations for enhancing the effectiveness of O&S across local government.
Overview and Scrutiny has a dual responsibility: to review, oversee, enhance and initiate council policy (although the latter has been challenged by some council executives); and, it has the duty to hold the council executive to account. In these roles O&S must be seen to add value to the performance of the council and the performance of services provided by external bodies as well as to the governance of the area (Fenwick et al, 2003).
Overview and scrutiny can be separated into the constituent parts of: overview, relating to policy; and, scrutiny, relating to the accountability of the executive (and external bodies), and each examined separately.
Policy Overview
In the policy ‘overview’ role O&S adds value when it demonstrably influences council policy (or the policies of external agencies) for the better by improving policy outcomes. It does that by:
Effective overview rests on the depth of any investigation, the level of expertise called upon during the inquiry, the breadth and depth of evidence received and the time spent exploring that evidence. Those processes are very different to where overview committees receive and simply note a report written and submitted by officers: an unnecessary hang-over from the committee system. The bullet pointed factors above are far from present in councils across the country and while there are examples of good overview it is clear that its quality and effectiveness varies not just across the country but also within councils. Members and officers report that certain committees (and their chairs) have excellent reputations for the quality and effectiveness of policy scrutiny, while the reputation of other committees and chairs in the same council, is far from adequate (Copus, 2016).
Executive Scrutiny
When acting as a vehicle for the accountability of the council executive scutiny must challenge, question, critique and seek justification and explanation from the executive for its decisions, actions and inactions and for the implementation of council policy. In the spirit of transparency, openness and democracy this process must be in the public domain. Effective scrutiny is an important democratic safeguard to how executives conduct their business and act as the political administration of the council (Cole, 2001). Effective scrutiny does not mean that an executive will accept every scrutiny suggestion and change decisions or policy; it does mean that the executive has had to publicly justify and explain what it is doing and why. But, as will be shown in section five, party politics often undermines effective scrutiny of the council executive.
Effective executive scrutiny requires:
The structure of any council must be shaped to ensure these factors are present, but the reality of much executive scrutiny is that it is ineffectual, party politicised, under-resourced and in many cases treated with disdain by council leaderships.
As with policy overview, executive scrutiny requires preparation, information, openness, dedicated chairs and vice-chairs and recognition of the vital nature of the function to the good governance of the council. It is with executive scrutiny that we see the greatest need for a culture change in local party politics and a recognition that the separation of powers in local government, no matter how blurred, requires councillors to undertake specific roles, irrespective of party affiliation. Scrutiny needs to be seen as a career choice for councillors, not a stepping stone to the executive.
Powers for Overview and Scrutiny
In recreating a parliamentary style political decision-making system in local government, the 2000 Act stopped far short of giving O&S the powers required to fully hold council executives to account and fell particularly short when it comes to holding other external bodies to account. Again there is a scattered pattern when it comes to the value of council leaders and executive councillors attending scrutiny events with some good and poor practice evident (Ashworth, et al, 2007). The main weakness is found when scrutiny is starved of information by an executive, given insufficient attention (in some cases councillors have reported being treated with disdain by executive councillors), or where O&S has insufficient resources to follow up its recommendations after scrutinising executive action.
Externally there are also problems for O&S in conducting its activities (see section 4) and, as with scrutiny of the executive, both good and poor practice exists. The duty to cooperate with scrutiny under the Local Government and Public Involvement in Health Act 2007 was very limited. It did not provide O&S with sufficient powers to be able to demand attendance or the provision of evidence to its inquiries by outside bodies. Councillors across the country have complained of the frustrations of conducing reviews of organisations or services where there is no statutory power that requires external agencies to provide information, attend scrutiny events or respond to scrutiny recommendations.
The weakness of both internal and external O&S require a radical strengthening of scrutiny powers to call witness, ensure receipt of sufficient evidence and information particularly from external bodies, require attendance at scrutiny of named individuals and a far greater response to scrutiny recommendations than ‘having regard to’ the outcomes of scrutiny inquiries.
Information is a vital resource for O&S and when information is not forthcoming it frustrates both the O&S process and councillors individually. Indeed, some councillors have reported using Freedom of Information requests against their own council to ensure they have access to information; the practice of any councillor feeling the need to use FoI requests is clearly an intolerable situation.
A constant theme of consultancy work with scrutiny councillors has been the imbalance in resources between that provided to the executive and that provided to O&S. Yet again there is a scattered pattern when it comes to resource allocation to O&S but even where O&S has dedicated officer support – often committee clerks rather than policy officers – there is an imbalance in access to senior officers. Chief Executives for example, will see their main point of member contact being with council leaders and the executive, rather than with scrutiny chairs.
Reductions in local government expenditure have affected levels of support to O&S with many local authorities reviewing their arrangements for the resources they provide to O&S with the aim of contributing to overall financial reductions. It is however, a false economy to reduce support for the group of councillors who can secure the accountability of the council and external bodies for the quality of the services they provide. Indeed, in times of austerity a mechanism for councillors to have the powers to hold their councils and external agencies to account, to challenge their decisions and to force change in policy is vital for the protection of the public.
The legislative framework for O&S does not adequately cover the issue of resources and support the function should receive. With the best spirit of localism in mind it is simply not good enough to leave decisions about the resources and support O&S will receive to individual councils. There must be a legal requirement on councils to provide equal officer and research support to O&S as that provided to executive. It is, of course, extremely difficult for senior officers, such as a Chief Executive, to serve equally the executive and scrutiny. But, without ready access to the Chief Executive O&S will always lack parity of esteem with the executive among officers.
At a minimum to be effectively resourced O&S requires:
While councils of different sizes and types do respond in their own ways to the resources they provide to O&S, the list above sets out the nature of the support required if O&S is to reach its full potential for policy development and public accountability.
When O&S focuses on external bodies – either holding them to account or attempting to influence policy and decisions made by those organisations that spend public money, make public policy but lack a public mandate, it faces particular problems, as follows (statutory responsibilities to one side):
Yet, when focused on external scrutiny the political interactions, across and within parties, are often more flexible and collaborative than when the council itself is the subject of an O&S review. Indeed, members have reported that external scrutiny is the most effective, positive and enjoyable aspects of the O&S function (Copus, 2016).
Again a number of factors need to be in place for the full potential of external O&S to be met:
• A focus on broad issues of governance
• Development of a shared policy vision for the community by O&S (and the executive)
• The ability of O&S to arbitrate between competing opinions and interests outside the council
• O&S supported by the council to construct coalitions and alliances on policy issues
• O&S leading in negotiations and seeking some form of consensus or part-agreement from a range of bodies to the conclusions and recommendations of its reviews
• O&S structured and supported in providing political and deliberative space to explore policy issues and influence others
• Using a democratic mandate and influence to create political leverage
• The power to require information from external bodies and require attendance at meetings
• Develop credible, evidence based recommendations and clarify how recommendations should be dealt with
With these factors in place and with adequate resources to support external O&S, local government as a whole can use its democratic legitimacy to shape, influence and align the policies and decisions of a wide range of external organisations for the benefit of local communities (see Lyons, 2007). Yet, there are two areas of significant weakness that must be addressed within statute: O&S power to compel witnesses, information and co-operation with inquires; and, power to enforce its recommendations.
Devolution and O&S
The creation of combined authorities has seen attention focused on elected mayors, cabinets and the respective powers of each. The debate around scrutiny has, by contrast, been less developed with an assumption arising that mayoral cabinets may have a scrutiny role or at least act as a check on mayoral activity. There is a danger that the scrutiny arrangements for combined authorities will replicate the weakness of council O&S and be under-resourced and supported, starved of information and seen as bit players in the governance of the combined authority areas. But, O&S will be vital to a healthy democracy and for highlighting public service weakness and failures.
Joint O&S committees with members from all constituent councils (a case can be made for associate councils to be represented on joint O&S arrangements within combined authority areas), will need sufficient resources and the powers to call witnesses, demand responses and require engagement with O&S inquiries, across the combined authority. The recommendations in section 6 apply to combined authority O&S as well as local government generally.
An opportunity was missed in the creation of combined authorities – because of the focus on leadership – to recreate a London Assembly style directly elected body with the responsibility to hold the mayor of any combined authority (and other organisations) to account. A directly elected scrutiny body with its own staff and resources may seem an expensive innovation, but as was pointed out in the committee’s call for evidence, serious governance failures resulting in damage to public services and the public can occur where O&S is inadequate or fails.
One of the weaknesses of the Local Government Act 2000 and subsequent legislation and regulations covering O&S is a fundamental misunderstanding of the difference in the way party politics plays itself out in local government, compared to parliament. Few councils have a sophisticated whipping system of one, two and three line whips, with most issues where a whip is imposed, being three line. Although whips are not supposed to be employed in O&S it is clear from research that a self-imposed whip can operate with councillors from ruling groups often reluctant to challenge, criticise and question executive members from their own party (Leach and Copus, 2004).
There is of course, as with much else in O&S, a scattered pattern across the country of how party politics influences the way scrutiny conducts its activities and its effectiveness. Party political excesses means opposition councillors in particular, can feel marginalised in O&S and that executive accountability is perfunctory at best and deliberately protective of the executive at worst.
Majority and minority group councillors have indicated that executive accountability, because of party loyalty and discipline can, if left unchecked, turn scrutiny into a meaningless ritual. It is easy however, for minority groups to overplay this hand, just as it is for majority groups to deny that party loyalty plays no part in scrutiny of the executive or council more widely. There is a danger of O&S becoming a party political battle-ground with ruling groups and oppositions misusing executive scrutiny for party political gain.
Party politics displays itself in the allocation of chairs and vice-chairs of O&S committees where there are three main patterns: the ruling group takes the chairs of all scrutiny committees; chairs and vice-chairs are shared between the majority and minority(s) group(s); the minority are allocated all chairs and vice-chairs. The healthiest position for O&S is that chairs and vice chairs are allocated between all groups on the council (Snape, Leach and Copus, 2002), but not always on a proportionate basis as the allocation could be weighted towards opposition groups.
Good practice suggests that O&S committees, once formed, should elect their own chairs and vice-chairs, rather than that being a function of full council annual meetings and therefore the outcome of party group meetings.
The party political culture of English local government requires considerable change if O&S is to reach its full potential in the policy-making and accountability processes of local government. With currently around 90% of all councillors in England being from one of the main three national political parties culture change may be hard to generate, but it is nonetheless important (Copus, 2016).
Overview and scrutiny must not be seen as a consolation for failing to become a member of the executive and O&S chairs must be recognised for the potential they offer the holder to influence and shape council policy and the external environment. If O&S is to fully flourish in local government there must be a recognition that the, all be it blurred, separation of powers between the executive and O&S offers all councillors influence in policy and local politics generally.
Councillors need to feel confident that O&S offers them a satisfactory and powerful input to policy within and beyond the Council (Leach, 2003). That is not secured by O&S becoming a decision-making body, which would only intensify party politics; a powerful role for O&S councillors will come from the function being resourced, supported, influential and being able to shape council policy and the decisions of outside bodies.
Without a radical rethink of the way party politics demonstrates itself in local government, further high-profile governance failures may result. Although party politics is not the only contributing factor when failures of O&S and governance occur, it can intensify the failure and make investigation into problems far more complex.
The strength of scrutiny is found where it does not replicate the old committee system and where members have recognised the potential for policy development inherent in O&S and taken action to fulfil that potential. Experience of O&S has shown that it lacks the powers that would make it a formidable contributor to local governance and that it lacks what is necessary for it to operate as a vehicle through which councillors can govern their locality.
By giving O&S power to conduct inquiries and ultimately enforce recommendations, a stronger governing role for councillors is created. Sufficient resources and powers would enable O&S to direct the complex network of bodies beyond the council.
The frustrations with the current system of O&S has seen some councils revert to the committee system, such as: Cambridgeshire, Nottinghamshire and Norfolk Counties, Hartlepool (which moved from an elected mayor to a committee system after a referendum in 2012), the London Borough of Barnet, Newark District Council, Reading and Brighton and Hove, (CfPS, 2014) with the most recent returnee to a committee system being Worcester City Council in February 2017.
The committee system offers councillors an illusion of power and control but the problems of O&S are stressed if some are prepared to jettison the potential O&S offers because it has been under-resourced and developed, prone to party political infighting and lacking genuine powers over the executive, the policy of the council or outside bodies. If changes are not made more councils may give up on O&S.
Recommendations
References
Ashworth, R. and S. Snape (2004), An overview of scrutiny: A triumph of context over structure, Local Government Studies, 30:4, 538–56
Ashworth, R. S. Aulakh and S. Snape ( 2007), ‘ Plugging the accountability gap? Evaluating the effectiveness of regional scrutiny’, Environment and Planning C Government and Policy, 25:2, 194 – 211
Centre for Public Scrutiny (2014), Annual survey of overview and scrutiny in local government
Cole, M (2001), Local Government Modernisation: The Executive and Scrutiny Model, Political
Quarterly, 72:2, 239–245
Copus, C., (2016) In Defence of Councillors, Manchester University Press
Leach, S., C., Copus (2004) Scrutiny and the Political Party Group in UK Local Government: New Models of Behaviour, Public Administration, 82:2, 331-354.
Lyons, M, (2007) Lyons Inquiry into Local Government: Final Report, The Stationery Office, London
Snape, S., S. Leach and C.Copus (2002), The Development of Overview and scrutiny, ODPM, London
March 2017