Final report of the Modernising Panel

PAPER D

REVIEW OF THE MODERNISING AGENDA

REPORT OF THE MODERNISING PANEL

FEBRUARY 2002

1. Introduction

The Isle of Wight Council implemented the “Modernising Agenda” as required by the Local Government Act 2000 at its meeting on 20 June 2001. Following a trial during the previous year the Council adopted a Leader with Executive model.

At its meeting on 30 October 2001 the Executive established a Modernising Panel to review the Council’s Constitution and to make recommendations to the Executive by the end of January 2002 on any amendments felt appropriate.

Owing to the amount of work required the Modernising Panel requested that the deadline for its report be extended to end of February 2002 and this was agreed by the Leader of the Council.

2. Membership and Number of Meetings

The Panel had seven members and was politically proportionate with the following members:

Cllr Brenda Lawson (appointed by the Panel as its Chairman)

Cllr Reg Barry

Cllr Michael Cunningham

Cllr Deborah Gardiner

Cllr Gordon Kendall

Cllr Roger Mazillius

Cllr Andy Sutton

The Panel has met on 4 occasions and all the agendas, reports and minutes of the panel have been available to all members of the Council.

3. Findings of the Panel

The following matters were considered by the Panel and the list of all its recommendations are set out latter in this report:

3.1 Name of Council

The Panel considered that that if there were benefits in changing the name of the Council - particularly with regard to finance - then this should be considered carefully against potential costs that might arise from such a change. However upon close investigation it was established that all funds that the Council receives (or indeed payments it may make) are related to services delivered rather the name of the Council. It was therefore agreed that there should be no further work on this subject.

3.2 Number of members on Council

In view of the recent changes to the size and nature of the existing Council, and bearing in mind the Government’s regional policies it was felt that it was unnecessary to take this matter any further.

3.3 Area Committees

It was noted that although area committees were successful in some areas of the country, that the establishment of Community Forums on the Island were a form of area committees and to be really effective the entire Island needed to have a Parish or Town Council. It was accordingly agreed that unless there is any real demand this matter should not be further progressed.

3.4 Delegation to Portfolio Holders

It was noted that work was being undertaken on this issue and that a report would be submitted to the Executive for them to consider prior to the Council considering the matter and making the final decision.

3.5 Non executive members attending/speaking on agenda items at the Executive

The Panel felt that the existing arrangements worked well largely due to the style of the current Leader however these needed to be formally set out in the constitution so that it was clear exactly what the procedure was. It was agreed that the Executive Procedure Rules should be amended so as to include a procedure as follows:

· Members wishing to speak on an item on the Executive agenda should give notice before the commencement of the meeting;

· The Local Member on an issue directly affecting their Electoral Division should have the opportunity to speak at the beginning of the debate;

· That a period of 7 minutes be allowed for each item for members who had not given prior notice to speak.

3.6 Public/member Question Time at Meetings of the Council

The Panel felt that the existing requirement for questions from the public to be submitted 48 hours in advance was too restrictive, although it was accepted that questions asked without notice might not receive a full reply at the meeting. It was suggested that the Council Procedure Rules should be amended to include the following:

· That the public be encouraged to submit questions in writing 48 hours before the meeting for a full reply at the meeting to be guaranteed.

· That questions can be asked without notice at the meeting with no guarantee of a full reply being given at the meeting.

· That Committee Services provide assistance to any person who wants it, on the process.

· That if a member of public wishes, their local member can ask the question on their behalf.

· That the recording of the questions and answers be as at present.

With regard to member question time at Council, it was agreed that it was inappropriate to extend the facility for members to ask questions of Chairmen of Select Committees. However for questions to portfolio holders, it was agreed that the Council Procedure Rules should be amended to include the following:

· Written questions to Portfolio Holders and Chairmen of the three Regulatory Panels must be submitted at least 24 hours in advance of the meeting.

· That the existing period of 7 minutes for “without notice” questions to Portfolio Holders remain.

· That any questions submitted under this procedure be restricted to questions on policy and budget and that the Chairman have the discretion to decide whether any question falls within this definition.

· That the recording of the questions and answers be as at present.

3.7 Appointment to outside bodies

Following some difficulties during the summer it is suggested that the procedure for appointments to Outside Bodies be slightly amended. The suggested revision would be that if the number of nominations received is equal to the number of vacancies the Proper Officer, has delegated authority, in consultation with the relevant Portfolio Holder and Chairman of Select Committee, to appoint those nominations to the vacancies. Where the number of nominations exceeds the number of vacancies then the matter is referred to the relevant Select Committee (other than for those bodies listed separately) who will recommend to the Executive who should be appointed.

The panel is asked to consider if any further amendments to this procedure should be recommended in the light of the comments made at Full Council at its meeting on 23 January 2002.

3.8 Code of practice for the Licensing Panel

The Licensing Panel at its meeting on 27 September considered that to assist members of the public, Members and officers in making sure that the licensing process was seen to be open and transparent, a Code of Practice for the Panel should be drafted. This was based on that contained in the Council Constitution for the Development Control Committee. It was agreed that the proposed code of practice for the Licensing Panel should be recommended for approval.

3.9 Liaison Committee Procedure Rules

The Panel considered the procedure rules that had been agreed by the Liaison Committee to enable it to operate more effectively. It was noted that the Liaison Committee was an informal meeting with no powers, but that its role was to ensure good co-ordination between the various Select Committees. The Panel suggested that to ensure that the role of the Liaison Committee was clear that the words “The Liaison Committee is not an overarching Scrutiny Committee” should be added as the first item under heading 1 in the procedure rules. With this amendment the Liaison Committee Procedure Rules are recommended for approval.

3.10 Overarching Scrutiny Panel

The Panel considered a recommendation from the Liaison Committee that no Overarching Scrutiny Panel be established at this stage. Whilst noting the views of the Liaison Committee the Panel also considered other views that suggested that an Overarching Scrutiny Panel was required to consider corporate matters. The Panel felt that given the differing views it would recommend that the report and recommendations of the Liaison Committee be referred to Council without comment.

3.11 Shadow Representatives

The Panel considered the issue of shadow representatives and what rights such a status could entail. Whilst generally the establishment of shadow representatives was welcomed, the Panel felt that it was for Council to consider and decide this matter and therefore this was referred without comment to the Council.

3.12 Executive, Select and Regulatory Committee minutes going to Full Council

Given that minutes of the various meetings of the Council are circulated to members a variety of ways and are now available on the intranet and internet, it was agreed that the Council should be recommended to remove the requirement that copies of the minutes be attached to the Council agenda.

3.13 Appointment of Political Assistants

As part of its proceedings the Panel considered the possibility of increasing the level of officer support to members by appointing political assistants to the various political groups. A report on the legal requirements of such posts was considered and as a consequence, given the likely high additional cost, the Panel recommended that no further work should be undertaken on this matter.

3.14 Select Committee Procedure Rules

The Panel considered a number of detailed amendments to the Select Committee Procedure rules which reflect working practices over the last 6 months or so. These are all detailed in the final recommendations.

3.15 Petitions

The issue of how the Council handles petitions that members of the public wish to present has been considered. The Panel felt that petitions should be presented to the relevant Portfolio Holders to deal with on behalf of the Council. If a Portfolio Holder considers that the issue addressed by a petition warrants a Select Committee investigation, he/she should raise it with the Select Committee Chairman and only by mutual agreement, the Select Committee would then become involved. Alternatively the Portfolio Holder could of course arrange for the issues raised within the petition to be considered at a meeting of the Executive or even as a motion at Council meetings.

4. Procedures for the Development Control Committee

As part of its work the Panel also received a presentation from the Chairman of the Development Control Committee and the Development Control Manager on a number of proposals that they were considering for amendments to the procedures for the Development Control Committee. The most significant of these was a procedure to enable members of the public, Parish and Town Councils and the applicant to speak at meetings of the Development Control Committee. All the proposed amendments were supported by the Panel who noted that a report on these would be submitted to the Development Control Committee shortly.

5. Recommendations

The Panel recommends that the Constitution of the Council (as adopted on 20 June 2001) be amended as follows:

a. That the Executive Procedure Rules be amended by the addition of the following under “How are Executive Meetings Conducted?”:

Rights of non-Executive Members to speak at meetings of the Executive.

(i) Non-Executive Members wishing to speak on an item on the Executive agenda should give notice before the commencement of the meeting;

(ii) The Local Member on an issue directly affecting their Electoral Division will have the opportunity to speak at the beginning of the debate (regardless of whether prior notification has be given in accordance with (i) above);

(iii) That in addition to (i) and (ii) above for each item considered by the Executive there be a period of 7 minutes during which non-members of the Executive may speak on the item.

[Should this requirement only applies to the Executive – the Chairmen of any other committee have the discretion to allow non-members to speak on an item under consideration.]

b. That Council Procedure Rule No. 9 (Questions by Members of the Public) be amended as follows:

Para 3 (Notice of questions) to read:

“To guarantee a reply at the meeting members of the public are encouraged to submit their questions, by delivering it in writing or by electronic mail, to the Proper Officer no later than 48 hours (not including weekends or bank holidays) prior to the start of the meeting. Each question must give the name and address of the questioner. Questions may be asked at the meeting without prior notice but in these circumstances there is no guarantee that a full reply will be given at the meeting”

Para 7 (Asking the question at the meeting) to read:

“Committee Services will provide assistance to any person who wants it, on the process for asking questions at Council meetings.

“The Chairman will invite the questioner to put the question to the member named in the notice. If a questioner who wishes to ask a question (whether or not prior notice has been given) prefers their local member can ask the question on their behalf. If the questioner is not present the Chairman may determine that the question will not be dealt with.”

[Procedure Rule No. 9 (Questions by Members of the Public) has been applied to all Committees (except Regulatory and Licensing Panel) of the Council and it is assumed that this will continue]

c. That Council Procedure Rule No. 10 (Questions by Members) be amended as follows:

Para 1 to read:

“A Member may ask the Chairman of the Council or Members of the Executive, or Chairmen of the Regulatory Committees any question on any matter where the Council has powers or duties or which affects the Council. Any question submitted under this procedure must be restricted to questions on policy and budget and the Chairman have the discretion to rule a question out of order if it falls outside this definition.”

Para 3 to read:

“Subject to sub paragraph (6) below, a question must be submitted to the Proper Officer in writing 24 hours (not including weekends and bank holidays) prior to the start of the meeting at which the question is to be asked.”

d. That Council Procedure Rule 25 (Procedure relating to Executive, Select Committee and Regulatory Committee Minutes at Council) be rescinded.

e. That the Select Committee Procedure Rules be amended as follows:

(i) Procedure Rule 6 (Quorum) be amended by the deletion of the words “task group” as these are informal panels and do not require a quorum.

(ii) Procedure Rule 7(b)(Who Chairs Overview and Scrutiny Committee meetings?) to be amended to read:

“The Chairman shall preside at any meeting of the Committee. In the absence of the Chairman the Vice Chairman shall preside at the meting. In the absence of both the Chairman and Vice Chairman the remaining members of the Committee shall elect a Chairman for that meeting.”

(iii) Procedure Rule 15 ( c) (Call-in) last line to be amended to read “within 5 working days of the decision to call-in."

f. That the following new/revised documents be approved for inclusion in the Constitution:

(i) Appointments to Outside Bodies (Appendix 1)

(ii) Code of Practice for the Licensing Panel (Appendix 2)

(iii) Liaison Committee Procedure Rules (Appendix 3)

g. That the Council itself consider the following two matters which are referred without comment:

(i) An overarching Scrutiny Committee (Appendix 4 was considered by the Liaison Committee who did not support the proposal)

(ii) The formal establishment of role of Shadow Representatives.

h. That the Council adopts a policy whereby petitions are received by the relevant portfolio holder and that they determine what action should be taken following the receipt of a petition.

i. That for the time being no further work be undertaken by officers on the following matters:

(i) Changing the name of the Council

(ii) Changing the number of members on the Council

(iii) Area Committees

(iv) Appointment of Political Assistants.

Brenda Lawson

Chairman of the Modernising Panel

1 THE NEED FOR GUIDANCE

1.1 This code has been written to help everyone understand the standards required of the Isle of Wight Council in carrying out its licensing function.

1.2 This code applies to all Isle of Wight Council Members and staff involved in the licensing system. It applies equally to the operation of the Licensing Panel when it is exercising its licensing functions and the Executive and the Council in their policy formulation function.

1.3 Licensing decision making relies on informed judgement within a firm policy context. It is also highly contentious because its decisions can affect the daily lives of everyone and the private interests of individuals, applicants and residents. This is heightened by the openness of the system, inasmuch as it actively invites public opinion on certain licensing functions before taking decisions. It is important, therefore, that the process is characterised by open and transparent decision-making.

1.4 The aim of this code of practice is to ensure that the Council operates an open and fair system. Failure to follow this code of practice, without good reason, could be taken into account during investigations into possible maladministration or by the Courts in considering any appeal.

1.5 Members and staff are requested to read this code thoroughly and put it into practice consistently. It is intended to review the code regularly so that it remains useful and relevant. If any points are unclear or need review, please contact the Strategic Director of Finance and Information or the Monitoring Officer.

2 GENERAL ROLE AND CONDUCT OF MEMBERS AND OFFICERS

2.1 Members and officers have different, but complementary, roles. Both serve the public but Members are responsible to the electorate, while officers are responsible to the Council as a whole. A successful relationship between Members and officers can only be based upon mutual trust and understanding of each other’s position. This relationship, and the trust which underpins it, must never be abused or compromised.

2.2 Applicants and the public are entitled to expect high standards of conduct and probity by all people holding public office and, in particular, when dealing with licensing matters. Only material licensing considerations should be taken into account. There are statutory provisions and code setting standards which must be followed. Both Members and officers are guided by national codes of conduct.

2.3 The National Code of Local Government Conduct (the National Code) provides guidance and standards for Members. Breaches of the National Code may be regarded as maladministration by the Local Government Ombudsman. (The National Code states that while Members have a special duty to their ward constituents, including those who did not vote for them, their overriding duty is to the whole community). Members should not favour any individuals or groups and, although they may be influenced by the opinions of others, they alone have the responsibility to decide what view to take.

2.4 Officers must always act impartially. In order to ensure that senior officers do so, the Local Government and Housing Act 1989 imposes political restrictions.

2.5 If any officer believes that pressure is being exerted upon him by a Member of the Council in relation to any particular application or vice versa, he or she shall forthwith notify the matter in writing to the Monitoring Officer. Members shall not attempt in any way to influence the terms of the officer’s report or recommendation on any application.

2.6 A further key principle is that local opposition or support for a proposal is not in itself a ground for refusing or granting licensing permission, unless that opposition or support is based upon valid reasons and concerns which can be sustained.

2.7 Following Council elections, and at intervals thereafter, a range of training seminars are held for Members. Guidance is given on the National Code of Local Government Conduct and on licensing matters. No member may sit on the Licensing Panel until they have satisfactorily attended the relevant training sessions.

2.8 Members and officers should be very cautious about accepting gifts and hospitality and should follow the advice in paragraphs 27-29 of the National Code and the Council’s Code of Practice for receipt of gifts and hospitality.

3 DECLARATION AND REGISTRATION OF INTERESTS

4 The law and the National Code set out requirements and guidance for Members and officers on declaring interests and the consequences of having such interests. The National Code advises that not only should impropriety be avoided, but also any appearance or grounds for suspicion of improper conduct. The responsibility for this rests individually with each Member and officer.

5 The Register of Member’s Interests maintained under the Local Government and Housing Act 1989 will be updated every six months, although any intermediate changes should be notified to the Monitoring Officer as soon as they occur.

6 The law makes specific provision requiring a Member or officer to disclose both direct and indirect pecuniary interests (including those of a spouse or partner) which they may have in any licensing application coming before the Licensing Panel. The Member will also be prohibited from speaking or voting on the application (the officer from speaking) and must withdraw from the meeting before it is considered. It may be possible to obtain a dispensation under Section 97 (1) of the Local Government Act 1972 from the Secretary of State to allow a Member to speak, but not to vote, where the views of the Member’s constituents would otherwise not be adequately represented.

7 Non-pecuniary interests can be just as important. These are Members’ or officers’ private or personal interests that may be thought to influence decision making (eg licensing applications submitted by a member of the Member’s or officer’s family or friends, as well as those arising through membership of, or association with, clubs, societies, and other organisations such as the freemasons, trade unions and voluntary bodies). If a Member or officer has a private or personal non-pecuniary interest, they must always declare it, unless it is insignificant or one which is shared by other members of the public (eg a Council tax payer).

8 The National Code provides that, if a Member or officer has declared a non-pecuniary interest, the Member or officer must then decide whether it is clear and substantial. If so, the Member may neither vote nor speak on the matter. A test for deciding whether an interest is clear and substantial is whether a member of the public, knowing the facts of the situation, would reasonably think that the Member or officer might be influenced by it.

9 Paragraph 12 of the National Code does provide for circumstances where non-pecuniary interests do not disbar a Member from voting (for example, where an interest arises through membership of a public body or where the Member had been appointed by the Council as its representative). This is covered by the Council’s Procedure Rules.

10 Members who have substantial Licensing interests, or other interests, which would prevent them from voting on a regular basis, should avoid serving on the Licensing Panel. Members who have business or other interests which may bring them into contact with the licensing system on a regular basis should not be considered for membership of the Licensing Panel.

11 Further advice on these matters is available from the Monitoring Officer.

12 LICENSING PROPOSALS SUBMITTED BY MEMBERS AND OFFICERS

13 If an application has been made by a Member or one of their family or friends, that Member should not vote or speak on the application and should withdraw from the meeting. Equally, a Member who has acted in a professional capacity for any individual, company or other body pursuing a licensing matter should not vote or speak in relation to that matter and should withdraw from the meeting.

14 In similar terms, where a Member wishes to object or support an application he/she may submit written representations, but would have to declare an interest and not speak or vote at the Licensing Panel. An officer could similarly submit written representations but having advised the Strategic Director of Finance and Information should take no part in the work of processing the application and, if required, to attend the Licensing Panel, would have to declare an interest.

15 LOBBYING OF MEMBERS AND LOBBYING BY MEMBERS

16 Individual Members on the Licensing Panel should reach their own conclusions on licensing matters, rather than follow the lead of another Member. In this regard, any political group meetings prior to a Panel meeting should not be used to decide how Members should vote. The use of political whips at group meetings in this way may be seen contrary to the National Code, amounting to maladministration. Decisions can be taken only after full consideration of the Officer’s report and information and discussion at the Licensing Panel.

17 When dealing with the public, it is quite proper for Members to give factual information, advice as to the process and procedures followed by the Council, and who to contact in the Council for further information. Equally, it is appropriate for a Member to report the public’s views, either to officers or to the Panel, but it would be wrong for the Member to put pressure on officers for a particular recommendation to the Licensing Panel.

18 A Member of the Licensing Panel who represents a ward affected by an application is in a difficult position if it is a controversial application around which a lot of lobbying takes place. If the Member responds to lobbying by deciding to go public in support of a particular outcome - or even campaign actively for it - it will be very difficult for that Member to argue convincingly, when the Licensing Panel comes to take its decision, that they have carefully weighed the evidence and arguments presented at Panel. The proper course of action for such a Member would be to make an open declaration and not to vote. Accordingly, a Member should avoid organising support for or against a licensing application if they intend to participate in its determination at Panel. A Member should not lobby other Members to support or oppose a Licensing application.

19 Members who also serve on parish councils may need to clarify their separate roles in each Council regarding Isle of Wight Council licensing policies. The public and other interested parties should be clear at all times when the Members are acting as a parish councillor and when they are acting in their role as an Isle of Wight Councillor.

20 Merely taking part in Town/Parish Council debates on licensing matters does not automatically debar a Member from decision-taking at the Licensing Panel. However, Town/Parish Councils do not have expert licensing advice or complete information on the application and other licensing matters when they make their representations to the Council. Therefore, Members who are also Town/Parish Councillors should be careful not to state that they have reached a conclusive decision when they consider licensing issues at their Town/Parish Council meeting. They should not declare to the Town/Parish Council what their future voting intention will be when the matter is considered at the Licensing Panel. Such conclusive statements at Town/Parish Council meetings could debar Members from speaking or voting at the Licensing Panel meetings dealing with licensing applications or other matters.

21 If Members consider they have been exposed to undue or excessive lobbying or approaches, these should be reported to the Monitoring Officer who will, in turn, advise the appropriate Officers.

22 PRE-APPLICATION DISCUSSIONS

23 Discussions between a potential applicant and the Council prior to the submission of an application can be of considerable benefit to both parties. Discussions can take place for a variety of reasons, for example: to overcome objections by the Police, Fire or Environmental Health; or to meet relevant neighbour concerns.

24 It should always be made clear at the outset that pre-application discussions will not bind the Council to making a particular decision, and that any views expressed are provisional, until all relevant information is submitted and consultations on it have taken place.

25 Advice should be consistent, and based on precedent, policies and other material considerations. There should be no significant difference of interpretation of licensing policies between licensing officers. All officers taking part in such discussion should make it quite clear whether or not they are the decision maker. Licensing Officers will ensure their advice is not partial, nor seen to be. A written note should be made of all meetings.

26 When attending public meetings and site visits, Members should take great care to maintain their impartial role as a Member, listen to all the points of view, and not state a conclusive decision on any proposal or submitted licensing application. Members of the Panel should not make unaccompanied “unofficial” site visits in connection with pre-submission discussions, the determination of current applications or familiarisation visits.

27 It is preferable that Members do not take part in pre-application discussions, so as to maintain impartiality. Where Members do become involved in such discussions, including meetings on site, they must seek the assistance and attendance of a Licensing Officer. If any contact is made in the absence of officers, a written note of any discussions between the Member and the applicant and/or his agent should be sent to the Strategic Director of Finance and Information so that it may be placed on the file.

28 OFFICER REPORTS TO COMMITTEE

29 Certain applications are dealt with under the scheme of delegation, which gives clear guidelines on when applications will be determined by the Strategic Director of Finance and Information, in some cases in consultation with the local Member and then the Chairman or Vice Chairman of the Licensing Panel. Where an application is dealt with under the agreed delegation procedure, a record will be kept of the considerations taken into account in the determination of that application with an appropriate sustainable justification for the decision.

30 Where appropriate, the reports will give comprehensive detail and a clear explanation of the location, the relevant licensing history, the policies and any other material considerations. Reports will identify a range of options which the Panel may choose.

31 Oral reporting, except to update a report or to make a brief presentation (if invited to do so by the Chairman of the Licensing Panel), will be rare. Additional information on items on the agenda received after the publication of the Panel agenda will be reported to the Licensing Panel and it will be for the Panel to decide whether this should be taken into account.

32 A Member shall not be able to vote in relation to any licensing application unless he or she has been present at the meeting of the Licensing Panel throughout the consideration of that particular application.

33 Licensing Committee decisions should be properly minuted. The courts have expressed the view that such reasons for a decision should be clear.

34 PANEL SITE VISITS

35 The purpose of a site visit is for Members of the Licensing Panel to gain knowledge of the site/premise involved in the application. A decision by the Licensing Panel to carry out a site visit should only be made where objective decisions could not be taken without such a visit. It should be remembered that site visits will cause delay and additional costs and should only be used where strictly necessary.

36 The Strategic Director of Finance and Information may decide that it is necessary for the Licensing Panel to visit the site prior to considering the application at a forthcoming meeting but he must obtain the necessary authorisation from the Chairman of the Licensing Panel.

37 The applicant (or their agent) shall be formally notified in writing of the site visit. The applicant (or their agent) will be asked to notify the Committee Administrator at the earliest possible date if they have any objections to the Panel entering their property or coming onto their land.

38 Authorised attendance at a site visit shall be limited to Members of the Licensing Panel, the local Member (if not a Member of the Panel), relevant Council officers, Officers of other relevant agencies (ie Police) and landowner/applicant/agent. Only those members of the Panel who attended the site visit will be able to consider the matter when the Panel formally meets.

39 Members will follow the Chairman of the Licensing Panel, accompanied by the relevant officer(s), on the site. Members should form and continue to form a single group. A site visit is for the purpose of viewing the site and ascertaining the facts. The Strategic Director of Finance and Information (or his representative) will summarise the issues which have led to the site visit and draw attention to any salient points but there will be no discussion on the merits of any application during the site visit although, of course, Members may ask questions and request clarification on individual points.

40 The applicants (or their agents) and members of the public shall not be permitted to make representations to Members of the Licensing Panel during a site visit. As an exception to the rule, however, the applicant/agent may, with the permission of the Chairman of the Licensing Panel, give any purely factual information which is required by Members and which cannot be ascertained by viewing alone. Such information shall be relayed through the Strategic Director of Finance and Information (or his representative).

41 The application will be determined at a meeting which will take place immediately after the conclusion of the site visit.

42 SANCTIONS

43 The purpose of this code is to provide guidance to Members, and Members of the Licensing Panel in particular, and officers in relation to the performance of the Council’s licensing function. The application of and adherence to the code is intended to build public confidence in the Council’s licensing system and to produce a strong platform for licensing decision making. The code does not remove the responsibility of Members to exercise their statutory discretion to determine the merits of individual applications.

44 The failure to adhere to the code gives rise to a range of potential consequences to the Council and individual Members, especially if this results in a pattern of inconsistency. Consistency and fairness are important qualities in the public eye and they are vital to the conduct of a Licensing Panel. Beyond the normal democratic process, a number of specific consequences can be identified.

45 The Council’s Standards Committee provides a forum where issues relating to the conduct of Members can be addressed. Therefore, in the event of any complaint being received by the Council that a breach of this code had occurred by virtue of the action of one or more individual Members, that complaint will be referred to the Standards Committee.

46 Although the Local Government Ombudsman will not investigate the balance of argument in any licensing decision, he/she may agree to investigate a licensing complaint if it concerns the manner in which a decision was taken. If it is found that injustice has been caused by maladministration in the light of statutory or established Council procedures, he/she will recommend redress which may take the form of compensation. Where the Local Government Ombudsman makes a finding of maladministration on the basis of a breach of the National Code of Conduct, then the report may name the individual Member and give particulars of the breach.

47 An applicant who has been refused permission, or granted permission on a conditional basis, has a right of appeal to the Magistrates Court or Crown Court. If an appeal is successful the appellant’s costs may be awarded against the Council.

48 If objectors are convinced that the Council, in determining to grant an application, did not observe its statutory obligations to carry out all necessary procedures, based its decisions on approved policies and take into account all representations, they may apply for judicial review of the decision. In such circumstances it would be normal for the costs of an applicant to be awarded against the Council. The Human Rights Act 1998 may give objectors, who are personally affected by a decision a further ground to apply to the courts.

49 Each of the above courses of action could result in significant additional costs to the Council. These costs will be closely examined by the District Auditor. Where it appears to an Auditor that a loss has been incurred or deficiency caused in the Council’s accounts by the willful misconduct of any person(s) he/she is required to certify that the loss or deficiency is due to that person(s).

Appendix 3

SELECT COMMITTEE LIAISON COMMITTEE PROCEDURE RULES

1. Terms of Reference for the Liaison Committee

(a) To oversee the work of all the Select Committees and that the potential for duplication of effort is minimised.

(b) Where matters fall within the remit of more than one Select Committee, to determine which of them will assume responsibility for any particular issue, and to resolve any issues of dispute between Select Committees.

(c) To receive requests from the Executive and/or the full Council for reports from Select Committees and to allocate them if appropriate to one or more Select Committees.

(d) To put in place and maintain a system to ensure that referrals from Select Committees to the Executive, either by way of report or for reconsideration are managed efficiently.

2. Who may sit on the Liaison Committee?

The Chairman of each of the Council’s Select Committees, or in the relevant Chairman’s absence, the Vice Chairman of that Select Committee.

3. Meetings of the Liaison Committee

(a) The Liaison Committee shall meet whenever there is business to conduct.

(b) Meetings shall be open to the public and press in accordance with the Access to Information Procedure Rules

4. Quorum

The quorum for the Liaison Committee shall be 3.

5. Who Chairs Liaison Committee meetings?

(a) The Chairman shall be appointed at the first meeting following the Annual Council;

(b) The Chairman shall preside at any meeting of the Liaison Committee. If the Chairman is not present, the remaining members of the Liaison Committee shall elect a Chairman for that meeting.

6. Agenda items

Any member of the Liaison Committee shall be entitled to give notice to the Proper Officer that he/she wishes an item relevant to the functions of the Liaison Committee to be included on the agenda for the next available meeting. On receipt of such a request the Proper Officer will ensure that it is included on the next available agenda.

7. Officers attendance at Liaison Committee meetings

(a) Where any officer is required to attend a Liaison Committee the Chairman of the Liaison Committee will inform the Proper Officer. The Proper Officer shall inform the officer in writing giving at least 10 working days notice of the meeting at which he/she is required to attend. The notice will state the nature of the item on which he/she is required to attend and whether any papers are required to be produced for the Committee.

(b) Where the officer is unable to attend on the required date, then the Liaison Committee shall in consultation with the officer arrange an alternative date for attendance.

8. Attendance by others

The Liaison Committee may invite people other than those people referred to in paragraph 7 above to address it, discuss issues of concern and/or answer questions on matters that fall within the terms of reference of the Liaison Committee.

9. Procedure at Liaison Committee meetings

The Liaison Committee shall consider the following business :

(i) minutes of the last meeting;

(ii) any urgent item of business which is not included on an agenda but the Chairman, after consultation with the Director of Corporate Services, agrees should be raised;

(iii) consideration of any matter referred to the Committee for discussion by the Executive;

(iv) the business otherwise set out on the agenda for the meeting;

Appendix 4

Committee : LIAISON COMMITTEE

Date : 27 SEPTEMBER 2001

Title : AN OVERARCHING SCRUTINY COMMITTEE

REPORT OF THE HEAD OF SELECT COMMITTEE SUPPORT

PURPOSE

This report is written in response to the resolution agreed at Full Council on 20 June 2001 :

“That a report be prepared by the Head of Select Committee Support for the Liaison Committee on the implications of establishing an overarching Scrutiny Committee.”

BACKGROUND

1. Local Authorities with a population in excess of 85,000 are required to adopt Executive arrangements that accord with provisions set out in the Local Government Act 2000.

2. This Council resolved to pilot new arrangements from April 2000 when an Executive and six Select Committees were established. These arrangements were subsequently modified in line with Government guidance. A revised Constitution was adopted by Full Council on 12 April 2001.

3. In adopting the new Constitution in April, Council recognised that certain working arrangements consistent with the Constitution could only be implemented when the legislative changes delayed by the general election had been implemented.

4. Both the guidelines and the legislation behind the Modernising Agenda have been reviewed in response to the resolution agreed by Full Council on 20 June 2001.

5. The Local Government Act 2000 requires that:

“Executive arrangements by a local authority must include provision for the appointment by the local authority of one or more committees of the authority (referred to ......... as overview and scrutiny committees).”

The Act also requires that the local authority provides overview and scrutiny committees with specific powers to scrutinise decisions made by the Executive or Full Council and to make reports and recommendations in respect of any functions which are the responsibility of the Executive or Full Council.

In addition, Government guidance on Modular Constitutions for English Local Authorities indicates that Councils may establish:

“a central co-ordinating committee ...... which could be a stand alone committee or could be the parent committee for all the overview and scrutiny functions ..... it could consist of chairs of individual overview and scrutiny committees."

6. In terms of Full Council’s resolution on 20 June 2001, the following three options could be considered:

(a) Option 1:

Establish an overarching Scrutiny Committee with powers of overview and scrutiny similar to those currently given to existing Select Committees:

(i) Similar powers would conflict with current terms of reference for existing Select Committees. Should, for example, an overarching Scrutiny Committee have powers of call-in?

(i) DETR Guidance makes it clear that ‘Overview and Scrutiny Committees should be powerful committees which meet in public to discuss and make recommendations on the development of policies and hold the Executive to account’ – the legislation stresses that the overview and scrutiny function is the mechanism by which local authorities become more accountable to their communities. An overarching Scrutiny Committee should therefore meet in public.

(iii) Whilst the legislation clearly indicates that scrutiny of the Executive may be carried out by overview and scrutiny committees, there seems to be no provision in the legislation for a Scrutiny Committee to be given powers to scrutinise other overview and scrutiny committees. (Probably because scrutiny and overview committees have no decision-making powers.)

(iv) The Full Council resolution implies that an overarching Scrutiny Committee would scrutinise the executive arrangements, ie the effectiveness of the Council’s new modernised structure. (In effect, this would be a formalisation of the role that the Modernising Panel undertook during the modernisation pilot) It should be emphasised, however, that the new Council structures have been set-up at the behest of central government. This indicates that it is not the systems of scrutiny that should be scrutinised, as the resolution implies, but the policies and decisions that are undertaken within that system. Further, the power to alter executive arrangements lies with Full Council with its remit to amend the Constitution.

(v) Members should be aware that overview and scrutiny committees should be politically proportional unless Full Council unanimously votes otherwise. It is unlikely that there would be cross-party support for a non-politically proportionate scrutiny committee.

(b) Option 2

An overarching Scrutiny Committee with co-ordinating powers:

(i) The existing Liaison Committee currently has powers to co-ordinate elements of the Select Committees work programmes, but has no powers of scrutiny.

(ii) The terms of reference for the Liaison Committee could perhaps be amended to give it further powers over the Executive and Select Committees. Government Guidance, however, puts emphasis on the ‘co-ordinating’ role and states that ‘the creation of a permanent watchdog for specific executive members or policy committees’ should be avoided. (and see (iv) above).

(iii) If a politically non-proportionate overarching Scrutiny Committee were to be given the power to co-ordinate the Select Committees work programmes it is unreasonable to think that this could be done without input from the Select Committee Chairmen.

(iv) If an overarching committee only had a co-ordinating role then its power to ‘take an overview of the way in which the Executive and Select Committee process is functioning’ would be limited.

An overarching Scrutiny Committee with some combination of both overview/scrutiny powers and co-ordination powers.

(i) The powers of overview and scrutiny could be split, with the 6 service-led Select Committees dealing with policy review and development and the overarching scrutiny committee taking both a scrutiny (perhaps the call-in element) and a co-ordinating role. (This has been done by Leicestershire CC and South Somerset DC – see below)

(ii) If such an arrangement were implemented, the terms of reference would have to define very clearly any powers of scrutiny that may remain with the 6 Select Committees.

7. Research indicates that of 31 randomly selected local authorities engaged in Modernising, just 6 had established committees that could be described as having an overarching scrutiny role, co-ordinating role, or combination of both. In summary these authorities are:

(i) Norfolk County Council where a Cabinet Scrutiny Committee has been established with powers of call-in and 9 Review Panels which advise executive members on policy.

(ii) Leicestershire County Council where a Scrutiny Commission has been established, that acts as a co-ordinating body with powers of call-in. It operates alongside 4 overview and scrutiny committees.

(iii) Cheshire County Council has a Performance and Overview Committee overseeing the scrutiny role, but may be reverting to a committee based system to deal with policy review and development.

(iv) Suffolk County Council has a Scrutiny Committee which holds the Executive to account and has powers of call-in. It also has 4 Theme Panels to review and comment on policy developments.

(v) South Somerset District Council has a Scrutiny Committee with powers of call-in that also scrutinises the outcomes of Council policy and strategy. It has 5 separate cross-cutting Strategy Groups that review and develop policy.

(vi) Bedfordshire County Council has a Scrutiny Committee to scrutinise resolutions of the Executive Committee and the performance of the County Council and the Executive Committee. The Council has 4 separate Select Committees.

Members are invited to indicate if they would like officers to arrange visits to any of these, or other, authorities.

8. Whether or not Council determines to introduce an Overarching Scrutiny Committee arrangements for operation of the Liaison Committee could usefully be reviewed.

9. In terms of effective Scrutiny, members should note that the Council’s constitution provides that: “Any member of a Select Committee shall be entitled to give notice to the Proper Officer that he/she wishes an item relevant to the functions of the Committee to be included on the agenda for the next available meeting of the Committee. On receipt of such a request the Proper Officer will ensure that it is included on the next available agenda.”

10. Existing powers of scrutiny rests with six Select Committees. The expectation is that members of all parties scrutinise Council business in a transparent, accountable manner in public.

11. Political proportionality rules indicate that opposition parties currently hold at least 4 seats on each Select Committee; a membership sufficient to initiate call-in of a decision, given Council’s adopted Constitution.

12. All members have opportunities to ask searching questions at existing Select Committees, Executive and Full Council, to promote the culture of effective scrutiny.

CONCLUSION

The resolution agreed at Full Council sought to identify the implications of establishing an overarching Scrutiny Committee. This report has identified many of those implications that in summary are highlighted as follows:

(i) The Constitution would need to be amended.

(ii) Costs to the Council are likely to increase, (an additional committee will incur additional costs linked to meeting frequency, officer support arrangements etc.)

(iii) Effort is likely to be duplicated in that powers of a new committee would need to at least match those of existing Select Committees. Alternatively, powers of existing Select Committees could be reduced.

(iv) If membership of a new overarching Scrutiny Committee was to be non-politically proportionate, the agreement of all members at Full Council would be required.

(v) The Liaison Committee’s role may become superfluous, to some extent countering predicted cost increases identified in (ii) above.

In preparing this report, attention has been drawn towards arrangements for effective operation of the Liaison Committee. It is submitted that it would be both consistent with the Modernising Agenda and appropriate for the Liaison Committee to recommend formalising arrangements for Liaison Committee meetings through the introduction of Procedure Rules. Draft Procedure Rules are attached to this report as Appendix 1.

Contact Point : Rob Owen, F 823801

ROB OWEN

Select Committee Support