Archived decisions
HAMPSHIRE COUNTY COUNCIL
Decision Report
Decision Maker: |
Cabinet | ||||
Date of Decision: |
27 July 2009 | ||||
Decision Title: |
Interim arrangements to support the Councillor Call for Action - draft protocol. | ||||
Decision Reference: |
845 | ||||
Report From: |
Chief Executive | ||||
Contact name: |
Denise Holden | ||||
Tel: |
Ext. 7338 |
Email: |
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1. Executive Summary
1. The purpose of this report is to provide the Cabinet with information and guidance about the `Councillor Call for Action' (CCfA). This power enables elected Members to raise a local government matter with the relevant Select Committee and was introduced in the Local Government and Public Involvement in Health Act 2007 (LGPIH Act). This change came into effect in April 2009. A complementary process for raising a CCfA was introduced in the Police and Justice Act 2006 at the same time, enabling local authorities to scrutinise and review local Crime and Disorder Partnerships in relation to crime and disorder and community safety matters.
2. National Guidance has been published setting out best practice in relation to the CCfA and matters that would be considered exempt under these arrangements. Local arrangements to support Members wishing to raise a CCfA, and the criteria that would guide any Select Committee in responding to such a referral are attached in the draft protocol at Appendix One.
Legislative context
3. The principal national policy driver behind the CCfA is the LGPIH Act. This is a wide-ranging piece of legislation that affects many aspects of local authorities' governance, powers and partnership arrangements as well as the new provisions for patient and public involvement in health and social care. This Act picks up key elements of the Strong and Prosperous Communities White Paper which was published in summer 2006.
4. A number of elements of the Act do not confer specific powers or responsibilities but depend on Regulations or Statutory Guidance from the Secretary of State. These are still emerging.
5. The Police and Justice Act 2006 is a related piece of legislation, part of which makes amendments to the Crime and Disorder Act 1998, and adds to local government legislation in this area. Home Office Guidance relating to the scrutiny of crime and disorder issues and the operation of the associated CCfA was published in May 2009.
6. The draft protocol included at Appendix One includes:
· A brief introduction to the CCfA
· The limits of the CCfA
· Raising a CCfA
· Managing a CCfA referral
· A flow chart to guide members considering a CCfA
· Explanatory notes
Risks of not having the CCfA in place
7. Unless action is taken now to agree the protocol Members may not be aware of the CCfA or how it will be managed by Hampshire County Council. There needs to be clarity about the responsibilities of both the referring Councillor and the Select Committee as well as what can and cannot be considered in this process. Arrangements should be able to allow genuine CCfAs to be dealt with fairly and openly and vexatious or unreasonable referrals to be managed appropriately. This is a process that needs to be managed proactively, not in the middle of a contentious or high profile dispute.
8. Inconsistency in the way in which referrals are dealt with may have reputation management implications with the potential for legal challenge.
Action required in relation to the CCfA
9. Protocols supporting the work of the Cabinet and Select Committees as set out in the County Council Constitution have been adjusted to ensure that these are consistent with the new requirements. In order to comply with the legislation Paragraph 1.9 of the Policy Review Rules of Procedure has been adapted to extend to all members the right to refer a matter to the relevant Select Committee.
10. A draft protocol for managing the CCfA is set out at Appendix One for discussion by Members. The views of Cabinet will be invited taking account of any feedback from the Policy and Resources Select Committee. The agreed protocol will then be circulated widely across the County Council and to partner organisations for information and feedback.
11. The protocol will be regularly reviewed to take account of relevant emerging legislation. The Policy and Resources Select Committee will review the protocol after six months to ensure that it is functioning as intended, both in terms of the support provided to a Councillor wishing to make a referral and the Select Committees in responding to any such referral.
12. Members will need to be clear about the options for resolving issues of local concern (e.g. through the relevant Hampshire Action Team or its successor) before raising a CCfA. The implications for the Departments and partners in responding to a potential CCfA will also need to be well understood in order to facilitate early resolution of issues of concern raised by local Members. Some training support may be required.
Financial Implications
13. At this point it is not possible to predict the extent to which the CCfA will be used by Members. There may be resource implications in terms of the Business Advice and Member Support team and Departmental officer time.
Conclusion
14. The CCfA strengthens and formalises the arrangements already in place across Hampshire County Council to allow members to raise issues of concern to existing Select Committees. The Health Overview and Scrutiny Committee (HOSC) includes provision for other local authorities and public sector partners to raise issues with the HOSC. It should be noted that this provision has not resulted in a multitude of referrals and the majority of issues raised in this way have been dealt with through signposting for local resolution.
15. Hampshire County Council Select Committees have agreed criteria for informing the in-depth scrutiny reviews that are undertaken and managing referrals from Local Involvement Networks (LINks). These provide a sensible basis for ensuring that CCfA's that are referred to the Select Committees are dealt with effectively.
16. Arrangements for the CCfA and associated constitutional changes are relatively straightforward. From a scrutiny perspective the CCfA should be the 'last port of call' for members seeking to address a local concern. There are implications for Hampshire County Council and partner organisations in terms of recognising and anticipating those issues that have the potential to be raised as a CCfA.
Recommendations
17. The protocol attached at Appendix One be approved.
18. The actions identified in paragraphs 9-12 of this report are initiated.
Appendix One: Hampshire County Council CCfA: Draft Protocol
Introduction
1. The Councillor Call for Action (CCfA) was introduced by the Local Government and Public Involvement in Health Act 2007 and came into effect in April 2009. It enables any Member to raise a local government matter for consideration by the relevant Select Committee. A complementary process was introduced in the Police and Justice Act 2006 at the same time, providing local authorities with the power to respond to CCfAs relating to local crime and disorder matters, and to scrutinise and review local Crime and Disorder Partnerships in relation to crime and disorder and community safety matters.
2. The purpose of the CCfA is to help Councillors to address issues and problems on behalf of their residents. It is not simply a `scrutiny' process and the national Guidance produced to support this new power for front line Councillors stresses the importance of the CCfA being introduced in the context of wider changes in local authorities, particularly in the arena of partnership working. This includes the extended powers of overview and scrutiny in relation to partner organisations, the introduction of petitions and setting up of joint committees, the regulations for which are yet to be announced.
3. The Guidance is clear that `processes and procedures are necessary to ensure that the CCfA is targeted and relevant, and that it occupies a central role in improving services, but these should not be too prescriptive'. This protocol therefore sets out key points for any Member considering making a CCfA and the criteria that will inform the response of the Select Committee to any such referral. Emphasis is placed on the early resolution of any concern raised in this way regardless of whether it becomes a `formal' CCfA. These arrangements will need to be reviewed as further regulations relating to partnership working are published.
4. The principles underpinning the successful operation of the CCfA are defined as:
· Transparency in decision-making, and the involvement of scrutiny in the decision-making process at some level
· A willingness to identify mistakes and shortcomings, and a recognition of the need to resolve problems through discussion
· An understanding (among senior officers and Executive Members in particular) of the role that scrutiny can play to help a council to improve its services
· An understanding and a wish to bolster and support, the role that ward councillors play as champions and leaders of their communities.
5. Consideration of the CCfA by Select Committees should take place only after all other avenues for taking action have been exhausted. Executive Members, lead officers and partner organisations will need to have clear arrangements in place to enable them to be alerted to `potential' CCfAs.
6. Other options open to Members acting on issues of concern to local communities also need to be well understood to ensure problems are dealt with effectively.
7. The Council has amended the Constitution to make provision in its Constitution for any member of the Council to refer to a Select Committee a "local government' or `local crime and disorder' matter which falls within the Committee's remit that `affects all or part of the electoral area for which the Member is elected, or any person who lives or works in that area and is not an excluded matter'.
8. A `local government matter' means one which:
· Relates to a function of the authority, and
· Affects all or part of the member's division - or the people that live or work in it, and
· Is not an excluded matter e.g. a local licensing or planning decision.
9. The Guidance encourages consideration to be given to a broader interpretation of a `local government matter' and include issues relating to partner organisations.
10. A `local crime and disorder' matter means one which concerns:
· crime and disorder (including in particular forms of crime and disorder that involve anti-social behaviour or other behaviour adversely affecting the local environment), or
· the misuse of drugs, alcohol and other substances in that area which affects all or part of the electoral area for which the member is elected or any person who lives and works in that area
11. There are specific expectations relating to any Member raising a CCfA as well as the response of the relevant Select Committee and the limits to the way in which it can be used. These are set out below.
Limits of the CCfA
12. Any matter that is considered to be vexatious, discriminatory or not reasonable is excluded from being considered as a CCfA. The definitions applied to this are the same as those used for the purposes of the Freedom of Information Act.
13. Other issues that would not be considered under a CCfA would be individual complaints, planning and licensing matters and `all other areas where a person has an alternative avenue to resolve an issue' (e.g. through the complaints/ appeals process).
14. The Guidance is clear that a CCfA is not guaranteed to solve a given problem, but it does provide a route through which such problems can be discussed with a view to finding an acceptable way forward. It is up to the Members of the Select Committee to determine how to respond to the CCfA. There is no appeal process.
15. The CCfA does not cut across the decision making process of the County Council and does not provide an additional opportunity for Members to challenge Executive decisions. It is not a means by which Members can have a `second bite of the cherry' where a `call in' or petition/deputation on the same matter has not been successful.
16. Matters that have been subject to previous scrutiny or review in the last six months are unlikely to be appropriate to raise as a CCfA unless the referring Member is able to demonstrate a material change in the evidence or circumstances.
17. Issues that are to be subject to scrutiny /review as part of a planned work programme are also unlikely to be suitable for a CCfA, although there will be scope for the concern raised to inform the focus of the topic being scrutinised.
Raising a CCfA Referral
18. The CCfA should relate to an issue in a Member's ward. The Guidance describes the CCfA as `not an "alternative" to normal ward work but as a long stop- a technique to be used when other methods for resolving an issue have not succeeded'.
19. A Member can refer a matter even if it has not been raised by his/her constituents. There is no requirement in multi-member wards for there to be agreement about raising a matter as a CCfA, although an indication that some level of discussion has taken place is likely to be helpful.
20. There are many options open to Members seeking to influence change and resolve problems including:
· Raising the matter with the relevant Hampshire Action Team or its successor
· Approaching the responsible Executive Member /partner organisation direct
· Informal discussion with officers or other Members
· Questions at Executive decision days
· Motions on the agenda at full Council
· `Call-in' of a decision
· Deputations/petitions
· Formal letters on behalf of constituents.
21. A flow chart setting out the options open to Members considering raising a CCfA and explanatory notes are attached at Annexes One and Two respectively.
22. Key questions to be addressed by a Member considering raising a CCfA include:
· Is this a matter specific to your ward
· Is the issue subject to complaint, other formal process or otherwise exempt
· Have you explored all other avenues open to you to resolve the issue
· Clarity about what is required to resolve the issue (e.g. additional resources, change in policy, service improvement)
Managing a CCfA referral
23. The HOSC and Safe and Healthy People Select Committee have arrangements in place to manage and report referrals from the Local Involvement Network (LINk) and other partners. Management of the CCfA will follow the same process i.e.
· The scrutiny officer, in conjunction with the relevant Select Committee Chairman will provide advice to any Member considering a CCfA
· Relevant Executive Members, lead officers and/or partner organisations will be alerted to the issue and invited to respond to the referring Councillor.
· The matter raised will be reported to the next meeting of the Select Committee together with any action proposed.
24. Each CCfA will be considered on its merits, taking into account the guiding questions set out in paragraph 22 and the criteria included at paragraphs 25 and 26 of this document.
25. In deciding how to respond the Select Committee should take into account action already initiated by the member and may "have regard to" two particular points:
· The possibility of asking the Executive to consider delegating power to the local councillor to deal with a local matter (under another new provision in S.236 of the LGPIH Act, also introduced in April 2009)
· Representations made by the member as to why the Select Committee should take the matter up.
26. The Select Committee will need to consider if the CCfA is open to the resolution being sought by the referring Member. Additionally, based on the current arrangements for managing referrals from the LINk the criteria to be considered when responding to a CCfA will be:
· The issue is of significant concern to the community affected
· The scope for local action/resolution with the lead agencies or responsible decision makers has been exhausted
· Intervention by the Select Committee is proportionate to the matter being referred
· There is evidence that intervention by the Select Committee has the potential to inform/improve service delivery
· There is a potential county/area wide impact on local people
· Due process has not been followed in making a decision (e.g. duty to involve and consult has not been discharged)
· The issue is not exempt or subject to alternative statutory arrangements (e.g. licensing or planning matters)
27. In responding to a referral the Select Committee will be mindful that decision makers may have to make decisions that are difficult and that, even following extensive engagement/consultation it may not be possible to achieve consensus across all sections of the community affected.
28. Issues that are more effectively dealt with through other routes or subject to another statutory process (e.g. complaints procedures or planning/licensing issues) will be signposted accordingly.
29. If a Select Committee decides not to consider a CCfA referred to it the reasons for this need to be clearly set out and communicated to the referring Member.
30. If a Select Committee does decide to scrutinise an issue appropriate arrangements will need to be put in place to ensure that the Member that raised the CCfA is informed and/ or involved.
31. CCfA referrals relating to crime and disorder issues and community safety matters will be dealt with by the Safe and Healthy People Select Committee.
Annexe One
I have an issue in my Division - how do I go about raising it within the County Council?
Does the issue relate to a County Council function?
Yes No
No Yes No Yes
Resolved
Scope for further action/informal resolution?
Resolved
Not Resolved
Place on agenda of relevant Select Committee (CCfA)
Call in of decision by quorum of members of relevant Select Committee (see Footnote 4)
Place on agenda of relevant Select Committee (CCfA) (see Footnote 2)
Executive decision supported
Executive decision not supported
Is the decision within the Policy Framework? (see Footnote 5)
Annexe Two: Explanatory Notes:
1. The flowchart covers Council functions that are the responsibility of the Executive (i.e. the Leader and Cabinet). This will be the case with the majority of issues that arise. However, the flowchart does not cover issues relating to functions that are not handled by the Executive e.g. planning decisions which are due to come before the Council's Regulatory Committee.
2. CCfA is the abbreviation for the "Councillor Call for Action", which has been introduced under recent legislation. This enables any member of the Council to refer to the relevant Select Committee any `local government matter' i.e. one which relates to the discharge of any function of the Council, affects all or part of the member's division, or any person who lives or works in that area, and is not an excluded matter (for example, a planning decision). As the flowchart shows, there are a number of other ways that members may raise issues. The CCfA is therefore to be exercised in accordance with a protocol, currently under development, and which will be brought to full Council for approval.
3. The Council's deputations procedure enables members of the public to address Executive Members at their decision days, and meetings of committees and full Council, on relevant issues which concern them. Notice is required (10 clear days for a Council meeting, 3 clear days in other cases), and the address must not exceed 10 minutes. There are certain other requirements in the procedure, which is set out in Standing Order 21.
4. "Call-in" is the process by which a Select Committee may subject a particular Executive decision to scrutiny, after the decision has been made. The request for call-in must be made within 7 days by a quorum of the relevant Committee i.e. one quarter of the whole number of members, or three (whichever is the greater). The Committee must then meet to consider the matter within 14 days. Call-in does not apply where the matter is urgent and where delay would prejudice the Council's position.
5. If the Committee decides not to support the called-in decision, the next steps depend on whether the decision is consistent with the Council's "Policy Framework". The Policy Framework comprises certain high level strategic plans agreed by full Council, setting out the general policy and direction within which the Executive is then empowered to make individual decisions. If the called-in decision is consistent with the Policy Framework, the difference in views is reported to the Council for information. If it is not consistent, the matter is referred to Council for decision.
6. The Council's powers of scrutiny have been extended under legislation to include certain other public bodies and partnerships, including local NHS bodies and crime and disorder reduction partnerships. This provides a means of raising issues to do with the wider local community, not confined to Council functions.
7. The flowchart is intended as an easy to follow guide to the options available for raising local issues within the Council. By its nature, it is a summary and cannot represent all relevant considerations, which are set out in more detail in the Constitution. Members with any queries should seek advice from the writer below:
Kevin Gardner, Head of Legal Services
[email protected] Tel: 01962 847381
CORPORATE OR LEGAL INFORMATION:
Links to the Corporate Strategy
Hampshire safer and more secure for all: |
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Maximising well-being: |
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Enhancing our quality of place: |
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Section 100 D - Local Government Act 1972 - background documents | |
The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report. (NB: the list excludes published works and any documents which disclose exempt or confidential information as defined in the Act.) | |
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