Long read: scrutiny in committee system authorities

Posted on 04/02/2023 by Ed Hammond.

CfGS is currently (February 2023) reviewing its material on the committee system. In light of this activity, some of our thinking on how councils approach committee system operations, and governance change options more generally, may change. If so, we will update this guidance accordingly. We are publishing this material in this format to elicit views on this.

Since 2012, all principal councils in England have been able to adopt the committee system form of governance. A minority of councils have shifted from the leader-cabinet model or the Mayor and cabinet model in that time, but the committee system is still attractive to councillors and members of the public in many more areas. In particular, it has captured the interest of activists – and councillors – who feel that it provides a way for councils to be more accountable and responsive to those it serves.

This is rather at odds with the strident view taken by the then-Government two decades ago, when the committee system was abolished for many. At the time, the 1998 local government White Paper said,

Traditional committee structures, still used by almost all councils, lead to inefficient and opaque decision making. Significant decisions are, in many councils, taken behind closed doors by political groups or even a small group of key people within the majority group. Consequently, many councillors, even those in the majority group, have little influence over council decisions.

 

Councillors also spend too much time in committee meetings which, because the decisions have already effectively been taken, are unproductive. […] The emphasis ought to be on bringing the views of their community to bear on the council’s decisions, and on scrutinising their performance.

 

Equally, there is little clear political leadership. This is not a reflection on the qualities of council leaders. It is caused by the structures in which they work.

 

[…]

 

This is no basis for modern, effective and responsive local government.

 

The need for “more scrutiny” was, it seems, alongside the need for clearer political leadership, a key consideration for Government at the time. And in this context it explains why scrutiny committees became a feature of the new, executive, governance arrangements. (We would obviously take issue with the pejorative way that Government expressed their view on the issue). 

CfGS takes a “neutral” view on the comparison between the committee system and other governance systems. In our current view it is not quite right to assume that there are inherent “pros and cons” associated with one system over the other. We think that the attitudes, behaviours and mindsets of members and officers are more important.

Structural governance change can, though, act as a catalyst for meaningful conversations about how democratic systems can be redesigned to be more effective – the kinds of conversations that otherwise might not happen. It’s also the case that councils can design new structures that will make it easier for them to act more openly, more collaboratively, more accountability – and that this may have proven difficult in another system. 

Discussions about whether or not to change governance option – and then once the decision has been made, what the governance system could look like – will often be fruitful, and will surface important issues about member-officer relationships, the role of councillors in decision-making, and the role of the public. Invariably councils have found that conversations about governance change, and change itself, have helped to reinvigorate debate and discussion about what good decision-making, and good oversight, look like. 

One of the conversations that need to be had on “good oversight” is what that looks like from members’ perspective. Where decisions are made in cross-party committees, where does “scrutiny” happen? Indeed, one of the things that we are asked quite frequently by councils considering a move to the committee system is whether they need to operate one or more scrutiny committees. The short answer is “no, they don’t”. The long answer is not quite so simple, and is what this article aims to provide.

The background and the law pre-2012

Until 2012, even committee system councils had to have one or more scrutiny committees. From 2000 until that year, the only councils allowed to operate under the committee system were shire district councils with populations under 85,000 – what were known as “fourth option” councils. Although these councils could retain the committee system form of governance (other councils were forced to move to a form of executive governance), they were expected to ensure that their system was “efficient, transparent and accountable” (s32, Local Government Act 2000, as originally passed). Government introduced this exception during the passage of the Bill – it did not form part of the political governance proposals that formed the basis of the policy in the preceding 1998 White Paper.

“Fourth option” councils were also obliged to establish overview and scrutiny committees. The Local Authorities (Alternative Arrangements) (England) Regulations 2001 (since revoked) laid out this obligation in more detail.

While councils were allowed to keep operating “alternative arrangements” under the committee system essentially indefinitely, there was a tacit expectation from many that at some point these holdouts would adopt executive arrangements. Over the course of the subsequent decade a small number of councils did indeed do so, but the majority did not – they considered that the committee system worked well for them, and they had no intention to change.

The Localism Act and the “modern” committee system

Before the 2010 election the Conservative Party announced plans to remove the restriction on councils around committee system operations, and to put in place a new legal framework to provide for a liberalisation around governance and decision-making. This happened in the Localism 2011, and the salient sections allowed any council to adopt the committee system from May 2012. (As well as reintroducing the committee system the Act brought in new arrangements for moving from one system to another – this is the main focus of our guide “Rethinking governance for the 20s” (2020).)

Importantly, these changes removed the requirement that committee system authorities should operate at least one scrutiny committee. The Act, and the Local Authorities (Committee System) (England) Regulations 2012 (revoking the 2001 Regulations mentioned above) provide for committee system councils to operate one or more scrutiny committees only if they choose. If they do choose to, certain powers and obligations go along with those committees, which we cover below.

Since 2012 around 30 councils have chosen to move to the committee system. The situation is slightly confused by the presence of a small number of councils who have moved to the committee system, and then back to executive arrangements. No-one keeps a central record of which councils operate which system – the situation of course changes every year.  

The common features of “modern” committee systems

The committee structure operated by committee system councils in the present day tends to look very different to that which prevailed prior to 2000. Councils tend to establish fewer committees, which meet less frequently. Modern attitudes towards officer delegation mean that the expectation is that members will not be nearly as involved in operational matters as they once were. There is arguably more of a sense of proportionality about the role of members and officers in the system overall.

This means that many councils have deliberately avoided describing their actions as reflecting a “return” to the committee system, because that implies a re-adoption of systems and processes last operated in the 1990s.

But this reduction in the range and scale of committee activity does have a knock-on impact for the role of scrutiny committees within this model. Understanding this central point allows us to move on to consider how councils have been trying to make this work practically.   

Making it work practically

Why have scrutiny, and why not?

A report to the Governance Committee of Sheffield City Council in March 2022 makes the argument quite pithily:

“In a committee system there is no legal requirement for separate scrutiny committee(s) now that cross-party check and challenge (and cross-party policy development) is built into every decision-making committee and Full Council”.

This sums up the persuasive argument that under executive arrangements, the concentration of power in the hands of a handful of Cabinet members meant that scrutiny committees are necessary to hold them to account and that, in the committee system, the nature of cross-party and more pluralistic decision-making makes formal “scrutiny” in a separate place a bit superfluous.

Equally, some councils feel that members need additional space to carry out duties relating to oversight, away from the place where decisions are made. There is also a sense for some councils that a separate scrutiny committee can help the council to hold to account bodies beyond the council, that nevertheless affect the area and the area’s inhabitants. 

However, before we accept this argument wholesale, we have to unpack several questions.

• What business is transacted in service committees, or is expected to be transacted by those committees?
• What other tasks may need to be transacted by members, if any?
• What is the best place to transact all of these tasks – given the amount of time available, and officer and member resources?

For clarity, these questions are just about the focus of ordinary committee business. They do not cover business that is required to be transacted at full Council (like agreement of the budget and policy framework), or the role of regulatory committees like planning and licensing, or the work of formal committees with a responsibility for oversight like the Audit Committee.

 What business is transacted in service committees?

 In service committees there will usually be four main sets of tasks for members:

• Making decisions. This tends to be the focus for most.
• Having policy discussions to inform future decisions.
• Receiving information and/or updates – on forthcoming or prospective decisions, on matters relating to national policy or on matters relating to delivery.
• Considering performance issues. This scrutiny-style activity combines with the regular receipt of information, to allow members to bring oversight and accountability to the way that services are delivered.

This is potentially a lot of business to transact.

What other tasks may need to be transacted by members, if any?

There are some tasks, usually described as “statutory scrutiny” functions, which members would also need to engage with.

• Health scrutiny, which has to be carried out by upper tier and unitary authorities. Specific duties exist here, as well as the power to refer matters of the concern to the Secretary of State where local NHS bodies propose substantial variations to the local health service (s244 et seq, National Health Service Act 2006, as amended). Scrutiny also holds the power to receive and consider reports from Local Healthwatch.
• Community safety scrutiny. Councils need to establish arrangements to scrutinise the work of community safety partnerships, and have to designate a particular committee to carry out this work – this does not need to be a scrutiny committee, however (ss19 and 20, Police and Justice Act 2006).
• There are some residual powers held by scrutiny the relate to flood risk management. We blogged in more detail on this some time ago – you can find the relevant material here – https://www.cfgs.org.uk/flooding-scrutiny-regulations-no-longer-in-force/

These powers and duties are ones that councils have to transact whether or not they have scrutiny committees.

There is a further power – the power to call in decisions. If a scrutiny committee is established it will have the power to call in decisions made but not implemented by the authority (Regulations 4 and 5, Local Authorities (Committee System) (England) Regulations 2012).  

A local authority scrutiny committee, if established, also has the power to investigate anything affecting the area or the area’s inhabitants. Although that power is technically not present for “ordinary” service committees of an authority it would be surprising if a service committee of a council was not seen as having similar powers (given councils’ overall power of general competence).

What is the best place to transact these tasks?

This is the central question, and the answer to it will determine whether a committee system authority considers is necessary to establish a separate scrutiny committee.

There is a logic in keeping a range of connected tasks in the same place. Developing a policy, making the decision on that policy, and reviewing the performance of that policy once implemented ensures proper member grip on key responsibilities and makes accountability and responsibility clear. It also helps to feed learning from performance review back into the decision-making process.

Having outward facing health scrutiny power sitting together with a council’s decision-making responsibility in respect of health and care issues also provides for robust alignment of duties.

Integration like this also serves to prevent the duplication of responsibilities. Some committee system authorities with scrutiny committees (especially pre-2011) felt that those committees had the potential to cut across the roles of service committees – especially given the presence of the call-in power (see above).  

However, there are two potential challenges in this kind of integrated approach:

• We have noted above the volume of business; transacting this business in a single committee means more frequent meetings, increasing the workload of a relatively small group of councillors;
• Lack of plurality. This integrated approach might disempower councillors who do not sit on these committees. It may also limit committees’ ability to hear from a wide range of voices – both amongst the councillor cohort and the wider public. Policy/service committees tend not to have the time to hear directly from members of the public themselves – other than through public questions, petitions and deputations. Scrutiny committees arguably have more space to transact some of this work.

Of course the opportunity could exist to set up working groups of committees to deal with both of those problems, but this might raise challenges around transparency.

The arguments are, we think, quite finely balanced.

Where scrutiny committees *have* been established, they have often followed a model of focusing on external issues. Scrutiny of health and community safety have been placed in these committees, and by so doing there is a symmetry between service committees – looking at internal council decision-making – and a scrutiny committee, which can look out to the council’s relationships with its partners.

It is also possible to handle some of the risks over call-in. Some councils have sought to design call-in arrangements to limit the risk that call-ins will duplicates prior debate in committee. This is justified given that committee decisions will have been made in a public meeting with cross-party representation. Often the issue lies in finding the right balance.

Finally, it is possible to place performance review in the hands of a scrutiny committee, too. We have spoken to some councils who recognise that – given the weight of expectation around decision-making – service committees can often relegate review of performance to the end of the agenda. This kind of oversight can become perfunctory in public meetings (unless serious issues emerge). Placing responsibility for such matters at scrutiny could provide more of a focus for this work.