What are the sanctions when you cannot get hold of information – or when you can’t get someone to attend a meeting

Posted on 16/01/2018 by Ed Hammond.

Increasingly, I am asked by exasperated councillors what the sanctions are when they are met with obstructions as they carry out their work. This can be senior officers dragging their feet when asked to provide information, Cabinet Members or senior officers not turning up to meetings having been requested to do so, Cabinet failing to respond substantively to scrutiny’s recommendations – and similar problems experienced with partner organisations.

Access to information (and a lack of it) was a primary concern of the recent CLG Select Committee’s inquiry into overview and scrutiny in local government – so it’s right to look at it again.  

Addressing the question properly is difficult. The easy answer is – there are no sanctions. Legal powers for scrutiny on information, attendance and recommendation responses are all set out in legislation. They can be found in the Local Government Act, and you can read all about them – and all other legislation pertaining to overview and scrutiny – in our newly-published legislation guide, “Pulling it together”.

Of course, the situation is not quite that simple.

The council’s Monitoring Officer has a personal responsibility for ensuring that the law, and constitution, is adhered to – that duty means that the MO has a role in enforcing behaviour through the council’s line management system, and through the provision of formal advice to councillors.

The council’s protocol for determining members’ rights to access information should provide definitive help on this issue, because it should reflect members’ legal entitlement of information.

Apart from this, there are a range of practical measures that scrutiny members (and, in particular, Chairs) can take to make sure that they can get what they need.

Some are informal. An informal approach is probably best in the first instance. Mutual misunderstandings about what information is available, why councillors need and expect to have access to it, and the projected outcomes of any related scrutiny work, can serve to put up a barrier between scrutiny and the executive. Clarity and honesty on all sides is the only way to progress – difficult in the case of a politically contentious topic but attempts should at least be made.

If informal attempts don’t work, a conversation with the Monitoring Officer should be the next port of call. Councillors do have clear information rights set out in legislation. Often, suggestions that councillors cannot see a certain report because, for example, of “commercial confidentiality” are based on a poor understanding of how far members’ information rights go. Councillors do, in fact, have very wide rights to see this information – either informally, or (potentially) as part of a Part II agenda item. The MO can help councillors to enforce their rights on these issues.

If members are still dissatisfied – and if all other attempts to resolve the situation have been exhausted – there are some more formal, public measures that members can take to enforce their requests. Extreme care is needed with how this is gone about. This takes such disputes into a more explicitly political realm, but also one where the rights and wrongs of officer advice are being called into question.

We would suggest that a formal letter, from the Chair of a relevant scrutiny committee, addressed to the Monitoring Officer, Chief Executive and Leader of the Council, is probably the best approach. Setting out exactly what had been requested, the initial response, and further attempts to acquire the information, would be wise. It may seem bizarre but consulting the Monitoring Officer in advance of the content and wording of the letter would firstly provide the council with the opportunity to reconsider its refusal, and would ensure that the letter is issued further to proper legal advice.

Scrutiny could publicise the letter however it wished. In any event it would be reported to the next meeting of the relevant overview and scrutiny meeting. Ultimately, the matter could be escalated to Full Council if no further action could be taken.

Systems to encourage and compel compliance with legislation – particularly on the provision of information – do exist, but in this form. Publicity and persuasion are scrutiny’s only real tools here.

“Pulling it together”, CfGS’s guide to legislation, is available to download now. CfGS wishes to thank officers at Coventry City Council, who kindly reviewed and made suggestions on the document when it was in draft form. The document should not be interpreted as providing legal advice; any mistakes are solely attributable to the author and a definitive position on the law should always be sought from a council’s Monitoring Officer in the case of uncertainty.

About the Author: Ed Hammond

Ed leads CfGS's work on devolution, transformation and on support to councils and other public bodies on governance and accountability.