PAPER C

Purpose: For Decision

REPORT TO FULL COUNCIL

Date: 15 OCTOBER 2003

Title: CONSTITUTIONAL AMENDMENTS

REPORT OF THE LEADER OF THE COUNCIL

IMPLEMENTATION DATE 15 OCTOBER 2003

SUMMARY/PURPOSE

1. This report proposes changes to the constitution of the council to reflect changes in the law since it was drafted, prior to adoption in June 2001, and further proposes a mechanism to enable cross party member involvement in the planned review of the constitution as part of the CPA Improvement Plan.

RECOMMENDATION

2. (i) The establishment of a politically proportionate Human Resources Committee with terms of reference set out in Appendix 1.

(ii) The addition of the Officer Employment Rules set out in Appendix 2.

(iii) The amendment of rules relating to time limits and the call in procedure as set out in paragraphs 15 and 19 below.

(iv) The transfer of Rights of Way to the remit of the Environment and Transport Select Committee as set out in paragraph 20 below.

(v) The establishment of a Corporate Governance Working Group with the draft work programme set out in Appendix 3.

BACKGROUND

3. The constitution of the council was adopted in 2001, having been drafted in the light of the law as it stood at that time. The law has changed and been clarified in several significant respects and the changes proposed reflect those changes and clarifications.

4. The CPA Improvement Plan, adopted by the Executive on 7 April 2003 sets a target to “Review political structures including the effectiveness of the Executive, the effectiveness of links between the Executive and working groups and a technical review of the constitution”

5. The amendments proposed by this paper can be seen as part of the technical review of the constitution. It is necessary that they be implemented in advance of the main review in order to bring the constitution in line with the law as it stands.

6. The consideration of the constitution gives the opportunity to establish a mechanism (similar to that which led the drafting of the constitution) to ensure the technical review is led by and responds to the needs and views of elected members. The mechanism should also ensure that the CPA Improvement Plan is not delivered in isolation of other developments in Corporate Governance.

7. The phrase technical review is used to describe a review of the mechanisms and procedures set out in the current constitution, with a view to improving their effectiveness, rather than altering the fundamental principles underpinning the constitution or the current structures.

8. Any more thorough going review would require widespread external consultation of the sort which preceded the adoption of executive arrangements in June 2001. The Parliamentary Urban Affairs Select Committee has urged councils not to undertake further fundamental reviews of their constitutional arrangements. It is therefore suggested that the emphasis, at least until after the next Comprehensive Performance Review in 2006, should be to identify relatively minor improvements, in addition to those required by changes to the law.

HUMAN RESOURCES COMMITTEE

9. The Local Authorities (Functions And Responsibilities) (England) Regulations 2001 (as subsequently amended) require Full Council, or a politically proportionate committee thereof), to have responsibility for discharging the “power to appoint staff, and to determine the conditions upon which they hold office (including procedures for their dismissal).”

10. The title, size and precise terms of reference are for local determination. The arrangements should reflect the recently adopted People Management Strategy, which instigates a move from references to Personnel to Human Resources. For this reason the title Personnel Committee is not recommended. Some local authorities in the region have an Employee Relations Committee. That title tends to reflect the previous legal position which was less clear in establishing the breadth of the responsibilities borne by the Full Council (as opposed to the Executive). It is not, therefore, recommended as a title.

11. The terms of reference set out in Appendix 1 are recommended as being consistent with the law and as a clear statement of the responsibilities discharged on behalf of the Full Council, which complement the responsibilities of the Executive collectively and the Portfolio Holder for Resources.

OFFICER EMPLOYMENT RULES

12. In another clarification of the law, there is now a clear requirement for mandatory rules relating to the employment of officers (under s135 Local Government Act 1972). The rules are prescribed, and there is little scope for local variation.

13. The rules have been complied with by the council since their enactment. This report affords the opportunity to formally add them to the constitution as required by the law.

14. The key provisions are:

· Requirement for applicants to declare relationships with existing employees and/or members

· Prohibition on involvement of members in recruitment of officers other than Strategic Directors and Heads of Service.

· Establishment of a politically proportionate appointments panel for member appointments of staff

· A consultative role for the Executive in senior appointments

· Involvement of members in appeals against disciplinary proceedings

· A specific regime for the discipline of Statutory Officers (including member involvement

The detailed provisions are set out in Appendix 2.

TIME LIMITS

15. The constitution refers at various places to the calling of meetings on 3 clear days notice. The law now requires 5 clear days notice and it is recommended that all references to clear days notice be read as 5 clear days notice.

16. The Select Committee Procedure Rules regulate the call-in procedure. At present, under Rule 15(c) the relevant select committee must meet to consider the called in decision within 5 working days of the presentation of a call in notice signed by 4 members of that select committee.

17. The 5 day time limit does not allow for the prescribed 5 clear day notice of the meeting. Further, the Select Co-ordinating Committee has taken the view (at it’s meeting in July 2003) that 5 days does not always allow members to re-arrange their diaries or for relevant material to be made available and attendance by others to be arranged. The Co-ordinating Committee have recommended and extension of the time limit to 10 working days.

18. Any extension must balance the lawful notice period and the needs of the select committees against the impact on the efficiency of the decision making process if lengthy time periods are adopted. A 10 day period is the maximum likely to be compatible with promoting efficiency, whereas 6 days would be the minimum compatible with the law. Full Council could choose to determine any period between 6 and 10 days.

19. Given the recommendation by the Co-ordinating Committee, it is recommended that the Select Committee Procedure Rules be amended to refer, at Rule 15(c) to calling a meeting within 10 working days.

REMIT FOR RIGHTS OF WAY

20. The Co-ordinating Committee also recommended that Rights of Way be transferred from the remit of Economic Development, Tourism, Planning and Leisure Services Select Committee to that of the Environment and Transport Select Committee – thus mirroring the portfolio holder responsibilities.

CORPORATE GOVERNANCE WORKING GROUP

21. The council is committed through the CPA Improvement Plan to reviewing it’s corporate governance arrangements, insofar as they relate to the operation of the Executive, the interface between the Executive and working parties, and the working of the constitution. Cross party member engagement in these processes is essential, and will be equally important as other corporate governance issues arise. It is therefore suggested that a working party be established with the composition and terms of reference set out in Appendix 3.

22. The proposals seek to be as flexible as possible in order to ensure that all member perspectives are reflected.

IMPLEMENTATION OF CHANGES

23. Many hard copies of the constitution exist. It is recommended that the electronic version available on the council’s website and intranet be the definitive version of the constitution. The only hard copies of the constitution, as amended in the light of this report and pending further amendments in early 2004, will be those in members rooms and distributed to libraries. Further copies will be available on request.

24. This will ensure that there is an accessible, definitive, constitution available without using resources on the production of hard copies at a time when further changes are planned.

BACKGROUND PAPERS

None.

S A SMART

LEADER OF THE COUNCIL

M J A FISHER

CHIEF EXECUTIVE OFFICER

APPENDIX 1

HUMAN RESOURCES COMMITTEE

A politically proportionate committee of 7 elected members, to include the Portfolio Holder for Resources, established under sections 101 and 102 of the Local Government Act 1972 in order to:

1. Discharge the functions of appointing staff and to determine the terms and conditions under which they hold office (including procedures for their dismissal).

2. To be available for consultation on proposals by the Executive, collectively, or by Portfolio Holders, individually, to significantly change the size and/or deployment of the workforce.

3. To adopt, oversee the development and implementation of strategies and plans, in particular in relation to:

· Recruitment and Selection

· Training and Development

· Pay and other benefits

· Redundancy and redeployment

· Performance and Motivation

· Attendance at Work

· Equalities and Diversity

· Industrial and employee relations

4. So far as not prescribed by law to devise and adopt procedures for determining capability and conduct issues in relation to staff.

5. To hear appeals against dismissal by staff not on JNC for Chief Executive and Chief Officers’ conditions of service.

6. To determine issues referred by the JCB.

Under s13 Local Government Act 2000 and the Local Authorities (England)(Functions and Responsibilities Order) 2001 responsibility for the deployment of staff and for the monitoring of the size and deployment of the establishment are the responsibility of the Executive, and particularly within the delegation to the Portfolio Holder for Resources.

APPENDIX 2

OFFICER EMPLOYMENT RULES

These Procedure Rules are Standing Orders made under S135 Local Government Act 1972.

Role of Head of Paid Service

1 Subject to paragraphs 3 and 7, the functions of appointment and dismissal of, and taking disciplinary action against, a member of staff of the authority must be discharged, on behalf of the authority, by the officer designated under section 4(1) of the 1989 Act (designation and reports of head of paid service) as the head of the authority's paid service or by an officer nominated by him (and not by members of the Council, except in accordance with Rule 8).

The Head of Paid Service has nominated all Strategic Directors and Heads of Service as officers who can carry out on his behalf the functions of appointment and dismissal of, and taking disciplinary action against, a member of staff, under Rule 1.

2 Rule 1 shall not apply to the appointment or dismissal of, or disciplinary action against –

(a) the officer designated as the head of the authority's paid service;

(b) a statutory chief officer within the meaning of section 2(6) of the 1989 Act (politically restricted posts);

(d) a deputy chief officer within the meaning of section 2(8) of the 1989 Act; or

(e) a person appointed in pursuance of section 9 of the 1989 Act assistants for political groups).

3 Recruitment and Appointment of Officers

(a) Declarations

(i) The council will draw up a statement requiring any candidate for appointment as an officer to state in writing whether they are the parent, grandparent, partner, child, stepchild, adopted child, grandchild, brother, sister, uncle, aunt, nephew or niece of an existing councillor, or officer of the council or of the partner of such persons.

(ii) No candidate so related to a councillor or an officer, or of a partner of such persons, shall be appointed without the authority of the relevant chief officer of the council.

(b) Seeking Support for Appointment

(i) Subject to paragraph (iii) below, the council will disqualify any applicant who directly or indirectly seeks the support of any councillor for any appointment with the council. The content of this paragraph (or words to similar effect) will be contained in any recruitment information.

(ii) Subject to paragraph (iii) below, no councillor will seek to support any person for appointment with the council.

(iii) Nothing in this Rule will prevent a councillor from giving a written reference for a candidate for submission in connection with an application for appointment.

4. Recruitment of Head of Paid Service and Chief Officers

4.1 Where the Council proposes to appoint a Chief Officer, and it is not proposed that the appointment will be made exclusively from among their existing officers, the council will:

(a) Draw up a statement specifying:

(i) the duties of the officer concerned; and

(ii) any qualifications or qualities to be sought in the person appointed

(b) Make arrangements for the post to be advertised in such a way as is likely to bring it to the attention of persons who are qualified to apply for it; and

4.2 Where a post has been advertised as provided in standing order 1(b), the authority shall -

(a) interview all qualified applicants for the post, or

(b) select a short list of such qualified applicants and interview those included on the short list.

4.3 Where no qualified person has applied, the authority shall make further arrangements for advertisement in accordance with Rule 4.1 (b).

4.4 Every appointment of a Chief Officer shall be made by the Authority.

5. Appointment and Dismissal of Head of Paid Service, Statutory and Other Chief Officers and Deputy Chief Officers

5.1 Where a committee or a sub-committee of the authority is discharging, on behalf of the authority, the functions of appointment or dismissal of:

(a) the officer designated as the head of the authority's paid service;

(b) a statutory chief officer within the meaning of section 2(6) of the 1989 Act (politically restricted posts);

(d) a deputy chief officer within the meaning of section 2(84 of the 1 989 Act;

This rule will apply.

5.2 In this Rule, "appointor" means, in relation to the appointment of a person as an officer of the authority, the authority or, where a committee, sub-committee or officer is discharging the function of appointment on behalf of the authority, that committee, sub-committee or officer, as the case may be.

5.3 An offer of an appointment as a Chief Executive Officer to in this Rule must not be made by the appointor until -

(a) the appointor has notified the proper officer of the name of the person to whom the appointor wishes to make the offer and any other particulars which the appointor considers are relevant to the appointment;

(b) the Proper Officer has notified every member of the executive of the authority of -

(i) the name of the person to whom the appointor wishes to make the offer;

(ii) any other particulars relevant to the appointment which the appointor has notified to the proper officer; and

(iii) the period within which any objection to the making of the offer is to be made on behalf of the executive to the proper officer; and

(i) The Leader of the Council within the period specified in the notice under sub-paragraph (b)(iii), notified the appointor that neither s/he nor any other member of the executive has any objection to the making of the offer;

(ii) the proper officer has notified the appointor that no objection was received by him within that period from the Executive; or

(iii) the appointor is satisfied that any objection received from the Executive within that period is not material or is not well-founded.

5.4 In this Rule, “dismissor” means, in relation to the dismissal of an officer of the authority, the authority or, where a committee, sub-committee or another officer is discharging the function of dismissal on behalf of the authority, that committee, sub-committee or other officer, as the case may be.

5.5 Notice of the dismissal of an officer referred to must not be given by the dismissor until -

(a) the dismissor has notified the Proper Officer of the name of the person who the dismissor wishes to dismiss and any other particulars which the dismissor considers are relevant to the dismissal;

(b) the Proper Officer has notified every member of the executive of the authority of -

(i) the name of the person who the dismissor wishes to dismiss;

(ii) any other particulars relevant to the dismissal which the dismissor has notified to the proper officer; and

(iii) the period within which any objection to the dismissal is to be made on behalf of the executive to the proper officer; and

(i) the Leader of the Council has, within the period specified in the notice under sub-paragraph (b)(iii), notified the dismissor that neither s/he nor any other member of the executive has any objection to the dismissal;

(ii) the Chief Executive has notified the dismissor that no objection was received by him within that period from the elected mayor; or

(iii) the dismissor is satisfied that any objection received on behalf of the Executive within that period is not material or is not well-founded.

6. Additional Rule in Relation to Appointment and Dismissal of Head of Paid Service

Where a committee, sub-committee or officer is discharging, on behalf of the authority, the function of the appointment or dismissal of an officer designated as the head of the authority's paid service, the Full Council must approve that appointment before an offer of appointment is made to him or, as the case may be, must approve that dismissal before notice of dismissal is given to him.

7. Discipline of Head of Paid Service, Monitoring Officer and Chief Finance Officer

7.1 Subject to paragraph (5), where, after a local authority has incorporated provisions in standing orders pursuant to regulation 6, it appears to the local authority that an allegation of misconduct by -

(a) the head of the authority's paid service;

(b) its monitoring officer; or

as the case may be, ("the relevant officer"), requires to be investigated, the authority must appoint a person ("the designated independent person") for the purposes of the standing order which incorporates the provisions in Schedule 3 (or provisions to the like effect).

7.2 The designated independent person must be such person as may be agreed between the authority and the relevant officer or, in default of such agreement, nominated by the Secretary of State.

7.3 The designated independent person –

(a) may direct -

(i) that the authority terminate any suspension of the relevant officer;

(ii) that any such suspension must continue after the expiry of the period referred to in paragraph 3 of Schedule 3 (or in provisions to the like effect);

(iii) that the terms on which any such suspension has taken place must be varied in accordance with the direction; or

(iv) that no steps (whether by the authority or any committee, sub-committee or officer acting on behalf of the authority) towards disciplinary action or further disciplinary action against the relevant officer, other than steps taken in the presence, or with the agreement, of the designated independent person, are to be taken before a report is made under sub-paragraph (d);

(b) may inspect any documents relating to the conduct of the relevant officer which are in the possession of the authority, or which the authority has power to authorise him to inspect;

(d) must make a report to the authority -

(i) stating his opinion as to whether (and, if so, the extent to which) the evidence he has obtained supports any allegation of misconduct against the relevant officer; and

(ii) recommending any disciplinary action which appears to him to be appropriate for the authority to take against the relevant officer; and

(e) must no later than the time at which he makes his report under sub-paragraph (d), send a copy of the report to the relevant officer.

7.4 A local authority must pay reasonable remuneration to a designated independent person appointed by the authority and any costs incurred by him in, or in connection with, the discharge of his functions under this regulation.

8. Additional Rules in Relation to Appointment of Political Assistants

(a) no appointment of a political assistant to a political group shall be made until such posts have been allocated to all political groups which qualify,

(b) no political assistant will be allocated to a political group which does not qualify for one,

(d) the prohibition on the involvement of members of the council in the appointment of officers does not apply to the appointment of political assistants.

9. Appeal Committees

Nothing in Rule t shall prevent a person from serving as a member of any committee or sub-committee established by the authority to consider an appeal by -

(a) another person against any decision relating to the appointment of that other person as a member of staff of the authority; or

(b) a member of staff of the authority against any decision relating to the dismissal of, or taking disciplinary action against, that member of staff.

10. Definitions

In these Rules:

"the 1989 Act" means the Local Government and Housing Act;

"the 2000 Act" means the Local Government Act 2000;

"disciplinary action" has the same meaning as in the Local Authorities (Standing Orders) (England) Regulations 2001;

"elected mayor" and "executive" have the same meaning as in Part II of the 2000 Act;

"member of staff" means a person appointed to or holding a paid office or employment under the authority; and

"proper officer" means an officer appointed by the authority for the purposes of the provisions in this Part (the officer appointed is the Chief Executive who is designated Head of Paid Service or their nominee).

APPENDIX 3

CORPORATE GOVERNANCE WORKING GROUP

Membership

1. Elected members nominated by:

The Leader of the Council (to represent the Executive)

The Leaders of Political Groups (to represent the views of those groups)

The Select Co-ordinating Committee (to represent the select committees)

A regulatory committee chair

Such other members (including an independent member) as are necessary to reflect the diversity of political opinion

2. Officers

The Chief Executive Officer

The Chief Financial Officer

The Head of Legal and Democratic Services/Monitoring Officer

Such other officers who, in the opinion of the working group, will enhance the work of the group.

Responsibilities

1. To consider necessary changes to the constitution and to make recommendations to improve the effectiveness of the current arrangements, as set out in the CPA Improvement Plan.

2. To consider changes to the corporate governance of the council, from time to time, and make recommendations for improvement.

3. To ensure that all political and constitutional perspectives are reflected in the development of recommendations and, where possible, to make recommendations by consensus.