4.1

There are a number of factors determining the work programme of the Committee, which will be a mixture of 'given' items by full Council and those generated by the Committee itself and agreed by Council.  The balance between planned items and specific ad hoc reviews will be important, and the capacity at Member and officer level to actually undertake the work.  Before formulating a work programme, it may be helpful to consider these factors, using the broad categories of type of review and capacity.

4.2

Alteration to the Budgetary and Policy Framework:  These will automatically come to Scrutiny Committee, with a 6 week window to come to a view.  The main predictable element is the budget cycle, and a broad outline is included in Appendix 4.1.  Other references will depend on the decisions actually made at the Executive.      

4.3

Reviews:  There is a great variety of reviews the Committee could undertake.  These might include:-

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Topics agreed at full Council, for example participating in the Review of the Community Plan.  These might be proposed by the Executive or any Member of Council.  At the Executive on 10 July, the topics of Community Plan consultation, London Road Depot and Tree Preservation Orders were proposed.

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Topics suggested by Scrutiny Committee and supported by the Council.

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Linking with broader reviews (for example the reviews of the Health Service are likely to be on a countywide basis with representatives from the Committee).

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The reviews may be a review of a previous Council or Executive decisions, or a broader review of a policy leading to new proposals.

4.4

Call-In:  These are potential reviews of decisions by the Executive, made but not yet implemented.  These demand quick action by the Committee, usually involving a special meeting.  A decision to call-in by the Chairman or Vice-Chairman of the Committee needs the support of the Committee if it is to proceed, and indeed co-operation from the Executive if it is to be completed quickly.  (Note:  a protocol could be introduced to cover these eventualities.)

4.5

The following constraints have been identified, limiting the size of the work programme:-

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Member resources.  The Committee has 18 Members which includes a Scrutiny Sub-Committee of nine.  Members may wish to use the Sub-Committee for some of the reviews, or divide into smaller groups.  (Note:  these would need to be cross party for officer support to be given.)

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Staff resources.  The Council does not have a 'scrutiny team' as such but efforts have been made to adapt the Member Services Section and to provide some policy support, for example on programming and scoping reviews and preparation of statements or responses.  Inevitably, the majority of the burden will fall on existing senior staff.  In this respect, more scrutiny can be undertaken if existing reports or research can be utilised, rather than commissioning further reports.

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Best Value.  The Council is undertaking a review of all its activities over a five year period.  This is proving a most demanding task.  Members, as a principle, would not wish to duplicate these reviews or commission work involving staff engaged in reviews.  If such a review was agreed, the Best Value service review would have to be suspended until Scrutiny Committee had concluded its study.  The existing review programme is shown as Appendix 4.2.

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Development of expertise.  Scrutiny is a generalist committee and Members may feel they do not have expertise in all areas of the Council's work.  It may be necessary for some Members to specialise or receive training on specific areas.

4.6

In scoping reviews, it would be helpful to have a systematic approach to defining the area of study, approach, membership and resources required which could be agreed by the Committee.  This would be most useful for the reviews category identified above, and a suggested approach is included in Appendix 4.3.

4.7

The development of a work programme is now of prime importance for the Committee.  It will need to set out planned work and retain sufficient flexibility for unplanned activities.  In draft form, it will require an assessment of the resources required and some negotiation, particularly if significant financial or staff or other resources are required.

6.3.1

Members will recall the decision taken at full Council on 22 May 2000 to adopt  executive arrangements consisting of a Leader and  Executive, notwithstanding that  the dissolution of parliament had resulted in the government failing to make all the  statutory instruments necessary to fully introduce those arrangements. The necessary statutory instruments have now been made, as a result of which the Head of Legal Services has carried out an audit to establish whether any of them generate an immediate requirement to amend the Council’s Constitution, or whether only minor amendments are indicated which could reasonably await the consideration of the Constitution Review Committee in the autumn.

6.3.2

The advice of the officers to proceed with the adoption of the new constitution has been  vindicated by the fact that the most significant statutory instrument, the Local Authorities (Executive and Alternative Arrangements)(Modification of Enactments and other Provisions) (England) Order 2001, contains numerous consequential amendments to existing legislation which are  either minor in nature or unrelated to the functions of a District Council.  

6.3.3

However, Article 45 of the above Order, while  requiring  only minor drafting amendment to the Constitution, introduces a draconian restriction on members speaking, voting or remaining in a meeting of a Scrutiny Committee or one of its sub-committees, where they have  “a prejudicial interest”.  A member will have a prejudicial interest where he is present at a meeting of the Scrutiny Committee  or one of its sub-committees and the matter under consideration relates to a decision made or an action taken by another committee or sub-committee (or a joint committee or sub-committee of a joint committee) of which he is a member. The  precise obligation imposed is to declare such an interest, withdraw from the  meeting and not return during consideration of the matter. If a member with a prejudicial interest wishes to attend a Scrutiny Committee meeting and/or speak and vote, he will have to obtain  a dispensation from the Secretary of State.  In addition, the proper officer is required to maintain a register of prejudicial interests which will be open to inspection by members during all reasonable hours. All of these provision came into force on 11 July 2001 and will remain in force until the Council adopts the new Code of Conduct.

6.3.4

It is appropriate that  a member who has participated in a  committee decision which is  now the subject of Scrutiny investigation, declares that interest and  it may  well be appropriate that if he is also a member of a scrutiny committee or sub-committee, that he is prohibited from voting on the matter.  What is less clear is why  it is considered appropriate that such a member should  be barred  not only from speaking but also from remaining in the meeting. By way of contrast, under the current Code of Conduct, an Executive Member who had, for example, been appointed as the Council’s representative to a charitable organisation,  would  be able to remain, speak and vote at a meeting of the Executive which considered an application  from that organisation for a grant. If the Executive Member was not the Council’s representative  but  a voluntary member of the charitable organisations management committee, the requirement would be to declare that interest but he could still remain in the meeting and speak( but not vote). It is difficult to perceive why the mere presence  of a  member with a prejudicial interest at a Scrutiny Committee meeting should be considered  likely to unduly influence the Committee, even if the courts have  in the past held that there was the appearance of bias when a member of a Council remained in a meeting during the consideration of a matter in respect of which he had declared a pecuniary interest. A clear distinction ought to be drawn between pecuniary and  non-pecuniary interests for it is only in respect of the former that it can reasonably be said that “what effects your pocket may also effect your judgement”.  

6.3.5

It may be that the Secretary of State has given more weight to the need for overview and scrutiny committees to retain (and be seen to retain) their impartiality and independence and it must also be the case that he has anticipated some of the  compulsory provisions likely to appear in the new Code of Conduct to be issued later this month. Notwithstanding,  the   requirement to  “declare, withdraw and keep out”   has been applied inconsistently and will have  some unfortunate consequences.  For example, it is  not inconceivable that the Scrutiny Committee would wish to question the Chairman of a Committee about a decision  made or action taken by of that committee. Without a dispensation from the Secretary of State this will not be possible as the duty of the Chairman  will be to decline to give evidence, declare a prejudicial interest and  withdraw from the meeting.  This cannot be viewed as helpful to the scrutiny process.

6.3.6

As only members of committees or sub-committees (or joint committees or sub-committees of joint committees) can have a prejudicial interest, it follows that the Executive Leader and the Executive Members will never have to declare a prejudicial interest when a decision made or action taken by the Executive or a committee of the Executive is under  scrutiny. There are probably two reasons for this apparent inconsistency of treatment between Executive and other members. Firstly,  Executive Members cannot be members of the a scrutiny committee and that fact operates to limit any potential conflict of interest. Secondly, there is a duty on  Executive members  to attend Scrutiny  meetings and give account if required to do so and this could not be reconciled with the imposition of a conflicting duty to declare, withdraw and keep out.     However, the logic of why the presence of an Executive Member at a  meeting of the Scrutiny Committee, whether giving evidence or simply observing the review of an decision or action of the Executive, would not be prejudicial, when the presence of a Committee Chairman in corresponding circumstance would be, is difficult to discern.

6.3.7

Finally, considering that this Order was made to facilitate the adoption of Leader and Executive arrangements, it must be considered a drafting failure that the Article fails to distinguish between joint committees of the Council and joint Committees of the Executive. By providing that  a member can have a prejudicial interest by reason of membership of  “a joint committee or a sub committee of a joint committee”  it would appear that a member of a joint committee of the Executive (who can only be an  Executive Member) - such as the Chiltern Crematorium - would have a prejudicial interest if  he was present at a meeting of the Scrutiny Committee reviewing a decision or action of the joint committee. If so, the duty would be to declare, withdraw and keep out.  However, if the Executive Member was present  to answer questions at the request of the Committee, the declare, withdraw and keep out duty could not be reconciled with the conflicting duty to give account. The advice of the Head of Legal Services is that the duty to give account  would prevail as it is one imposed by primary legislation.    

6.4

Conclusions