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Maidstone Borough Council

Council

Wednesday 22 April 2009

Constitution Changes Required as a Result of the Implications from the Local Government and Public Involvement in Health Act 2007 and Police and Justice Act 2006

Report of: Corporate Services Overview and Scrutiny Committee prepared by the Overview, Scrutiny and Policy Manager

1. �� Introduction

1.1 The Local Government and Public Involvement in Health (LGPIH) Act 2007, and the Police and Justice Act 2006 made a number of changes to the operation and duties of local government. This report identifies those which affect scrutiny and require changes to the constitution. The Police and Justice Act 2006, regulations come into force as of 30 April 2009.

1.2 A further order comes into affect on 1April 2009 relating to Overview and Scrutiny Committees, introduced by the Secretary of State under section 21A of the Local Government Act 2000 regarding matters which can be referred to Overview and Scrutiny Committees, as this runs parallel to the changes required under the LGPIH the amendments required by this order are also included in this report.

1.3 The changes proposed to the procedure rules will require an amendment to the constitution. The Corporate Services Overview and Scrutiny Committee agreed the changes outlined in this report on 7 April 2009, any amendments required by the Standards Committee will be reported orally at the meeting.

2. �� Implications and Required Constitution Changes LGPIH, 2007 and Matters which can be referred to Overview and Scrutiny Committees

2.1 Councillor Call for Action

2.1.1 The Act provides that any member of the Council will be able to refer to Overview and Scrutiny Committees �a local government matter�, i.e. a matter relating to the Council�s functions which affects their electoral division. As well as putting an item forward they will be allowed to make representations to the scrutiny committee to explain why they think the matter should be scrutinised.�

2.1.2 When a Member exercises this right they must have regard to the guidance issued by the Centre for Public Scrutiny and IDeA. The guidance states that Councillor Call for Actions (CCfA) coming to scrutiny must be an act of last resort for the Ward Councillor:

�CCfA will be a means of �last resort� in a broad sense, with issues being raised at committee after other avenues have been exhausted. As such, the process should make it easier for

issues that would benefit from scrutiny consideration to rise to the surface, and for those issues which are best dealt with through other means to be signposted accordingly.�

A protocol is attached at Appendix E for inclusion in the Council�s constitution as an appendix to the Overview and Scrutiny Procedure Rules for dealing with a Councillor Call for Action. The protocol adheres to the guidance issued.[1]

2.1.3 �If the Committee decide not to scrutinise the matter they must tell the member why not. If they do carry out a scrutiny review into the matter the outcomes and recommendations must be provided to the Member. According to the guidance when scrutiny considers whether to review a matter referred by a ward councillor they must also consider the extent to which the Member has exercised the power given to him under section 236 of the Act. Section 236 refers to the exercise of local functions, this provides for the Council to make arrangements for individual members to exercise executive functions for their ward.

2.1.4 �Presently our constitution allows any overview and scrutiny member to put forward an item for consideration by the relevant Overview and Scrutiny Committee. The Act broadens this considerably allowing any Councillor to refer a matter to an Overview and Scrutiny Committee for consideration. Outlined below is the relevant extract from the constitution:

�9. Agenda items

Any Member of an Overview and Scrutiny Committee or Sub Committee shall be entitled to give notice to the proper officer that he wishes an item relevant to the functions of the Committee or Sub-Committee to be included on the agenda for the next available meeting of the Committee or Sub-Committee. On receipt of such a request the proper officer will ensure that it is included on the next available agenda.�

The requirements of the Act are such that an additional paragraph will need to be added to the overview and scrutiny procedure rules section 9, Agenda Items as follows:

�

�Furthermore any Member shall be entitled to give notice to the proper officer that he wishes an item relating to his ward, which is relevant to the functions of the Committee or Sub- Committee to be included on the agenda for the next available meeting of the Committee or Sub-Committee (A Councillor Call for Action).� On receipt of such a request the Chairman of the relevant Overview and Scrutiny Committee will in consultation with the proper officer then determine whether the item can be taken forward in accordance with the Councillor Call for Action Protocol. In particular they should have regard to whether it is a local government matter and what matters cannot be referred to an Overview and Scrutiny Committee. In putting forward such a request the Councillor must have regard to the Councillor Call for Action Protocol attached to the Overview and Scrutiny Procedure rules and the government guidance. The Councillor concerned will be able to make representation to the Committee or Sub-Committee, when the Committee or Sub-Committee takes an item forward for scrutiny. The Committee should consider the extent to which the Councillor has exercised any power given to him under section 236. If the matter is a crime and disorder matter responsible authorities (CDRP Members) must be notified by the proper officer. The proper officer in consultation with the Overview and Scrutiny Chairman will also give regard to the guidance from the Secretary of State regarding matters that can not be referred to an Overview and Scrutiny Committee as outlined in the paragraph below.�

2.2 Matters not to be referred to Overview and Scrutiny Committees

2.2.1 Furthermore the regulation introduced by the Secretary of State under section 21A of the Local Government Act 2000, will require a further addition to the above section of the constitution. This Order specifies descriptions of matters that are not to be local government matters for the purposes of section 21A. The effect of article 2 of the Order is that a member of an English local authority may not refer to the authority�s overview and scrutiny committee:

� any matter relating to a licensing decision or a planning decision (both defined in article 1(3));

� a matter relating to an individual or entity where there is already a statutory right to a review or appeal (other than the right to complain to the Commission for Local Administration � commonly known as the Local Government Ombudsman);

� or a matter which is vexatious, discriminatory or not reasonable to be included on the agenda for, or to be discussed at, a meeting of an overview and scrutiny committee or any of its sub-committees.

2.2.2 Article 3 provides that a matter which consists of an allegation of systematic failure of an authority to discharge a function for which the authority is responsible may be referred to an overview and scrutiny committee, notwithstanding the fact that the allegation specifies matters which would otherwise be excluded by virtue of article 2.

2.2.3 The following additional paragraph will need to be added to number 9, Agenda Items of the Overview and Scrutiny Procedure Rules:

�The following matters may not be referred to an Overview and Scrutiny Committee or its Sub-Committees:

a) any matter relating to a planning decision;

b) any matter relating to a licensing decision;

c) any matter relating to an individual or entity in respect of which that individual or entity has a right of recourse to a review or right of appeal conferred by or under any enactment;

d) any matter which is vexatious, discriminatory or not reasonable to be included in the agenda for, or to be discussed at, a meeting of the overview and scrutiny committee or at a meeting of a sub-committee of that committee.

�However a matter which consists of an allegation of systematic failure of an authority to discharge a function for which the authority is responsible may be referred to an overview and scrutiny committee, notwithstanding the fact that the allegation specifies matters which would otherwise be excluded by virtue of article 2.�

2.3 The changes proposed in paragraphs 2.1 and 2.2 are outlined in Appendix A and E

2.4 Scrutiny of Functions exercised by Individual Members

2.4.1 Under section 236 of the LPIH Act a Ward Councillor can be given delegated powers to carry out executive functions for their ward. As such any exercise of executive functions will be subject to scrutiny including call-in. The Overview and Scrutiny Procedure rules regarding call-in will have to be amended to allow such scrutiny. The proposed amendment is included at Appendix B.

2.5 Scrutiny of Local Improvement Targets and Joint Scrutiny Committees

2.5.1 The act allows overview and scrutiny committees to scrutinise the performance of the Local Area Agreement and its improvement targets. In two tier areas the responsibility for this applies to the County Council, district councils can however scrutinise the Kent Wide Area agreement through joint committees. Whilst Maidstone will scrutinise the LSP and its targets through the External Overview and Scrutiny Committee we will not be able to place requirements upon partner agencies to provide information unless permission is sought and given by the Secretary of State

2.5.2 A scrutiny officer working group will be considering how the scrutiny of the LAA should take place in Kent. The legislation allows for joint scrutiny committees to be set-up on two-tier areas to scrutinise the LAA and the local improvement targets � this will be one of the options considered by the working group with the aim to get new scrutiny arrangements in place in June 2009. Once these new arrangements have been agreed further amendment to the constitution may be required.

3.�� Implications and Required Constitution Changes arising from the �Police and Justice Act 2006

3.1 The Police and Justice Act 2006 was introduced to increase community involvement in crime and disorder and community safety matters. The act allows communities to refer unresolved crime and disorder matters to the responsible authorities via ward councillors and scrutiny committees.� It also increases the democratic accountability of the Police and Crime and Disorder Partnerships (CDRP) through increased scrutiny powers. Responsible authorities are those which are statutorily required to form the CDRP.

3.2 The overview and scrutiny regulations of the Police and Justice Act 2006, will finally come into force on 30 April 2008. ��The Police and Justice Act 2006 Part 3, Section 19 (1) states that �Every local authority shall ensure that it has a committee (the �crime and disorder committee�) with power �

(a) to review or scrutinise decisions made, or other action taken, in connection with the discharge by the responsible authorities of their crime and disorder functions;

(b) to make reports or recommendations to the local authority with the respect to the discharge of those functions.�

3.3 The same Act also declares (in Part 3, Section 19 (9)(a)) that �the crime and disorder committee is to be an overview and scrutiny committee of the authority�.

3.4 The primary function of the Crime and Disorder Committee will be to exercise and undertaken a function in relation to the powers delegated to Local Authorities via the Crime and Disorder Act 1998 � as amended by the Police and Justice Act 2006 � as a responsibility of Scrutiny. These will be exercised provided that they are not:

� exercisable only by the Council itself;

� exercised in a way which breaches, or has the effect of breaching, policies, strategies and overall budgets approved by the Council, or have adverse legal implications.

3.5 The explanatory note for the regulations relating to the above act is outlined below for information:

�Regulation 3 provides that crime and disorder committees may co-opt additional members from those persons and bodies who are responsible authorities within the meaning of section 5 of the Crime and Disorder Act 1988, and from those persons and bodies with whom the responsible authorities have a duty to co-operate under section 5(2) of that Act (the �co-operating persons and bodies�), subject to the provisions set out in that regulation. To the extent of their membership, co-opted members have the same entitlement to vote as any other member.

Regulation 4 provides that a crime and disorder committee shall meet to review or scrutinise decisions made, or other action taken, in connection with the discharge by the responsible authorities of their crime and disorder functions, no less than twice in every twelve month period.

Regulation 5 provides that responsible authorities or co-operating persons or bodies must provide such information requested of them by the crime and disorder committee, subject to the provisions in that regulation.

Regulation 6 provides that a crime and disorder committee may require the attendance before it of a representative of a responsible authority or of a co-operating person or body in order to answer questions, subject to the provisions in that regulation.

Regulation 7 provides that where a crime and disorder committee makes a report or recommendations to a responsible authorities and co-operating persons or bodies in accordance with section 19(8)(b) of the Police and Justice Act 2006, the responses to such report or recommendations of each relevant authority, body or person shall be in writing and within 1 month from the date of the report or recommendations or, if this is not reasonably possible, as soon as possible thereafter.

Regulation 7 also provides that a crime and disorder committee shall review such responses and monitor the action (if any) taken by the relevant responsible authorities, co-operating persons or bodies in accordance with its powers under section 19(1) of the 2006 Act.�

3.5�� It is recommended that the External Overview and Scrutiny Committee operates as the Crime and Disorder Committee. The terms of reference for the Committee and Overview and Scrutiny Procedure Rules will need to be amended to reflect the Act and regulations. These amendments are outlined at Appendix C and D.

4.�� Recommendation

4.1�� That Council agree the amendments proposed to the constitution in order to enact the requirements of the legislation.

4.2�� It be noted that since the guidance has only just been published with a short timescale for implementation there may be a need for further amendments to ensure that the constitution fully reflects the governance arrangements for Maidstone.

APPENDIX A

9. �� Agenda items

Any Member of an Overview and Scrutiny Committee or Sub-Committee shall be entitled to give notice to the proper officer that he wishes an item relevant to the functions of the Committee or Sub-Committee to be included on the agenda for the next available meeting of the Committee or Sub-Committee. On receipt of such a request the proper officer will ensure that it is included on the next available agenda.

The following matters may not be referred to an Overview and Scrutiny Committee or its Sub-Committees:

a) any matter relating to a planning decision;

b) any matter relating to a licensing decision;

c) any matter relating to an individual or entity in respect of which that individual or entity has a right of recourse to a review or right of appeal conferred by or under any enactment;

APPENDIX B

16. �� Call in

�� When a decision is made by the Executive, an individual Member of the Executive, or a Councillor with delegated Executive authority or a key decision is made by an Officer with delegated authority from the Executive or an Area Committee or under joint arrangements, the decision shall be published, including where possible by electronic means, and shall be available at the main offices of the Council, normally within 2 working days of it being made. All Members of each Overview and Scrutiny Committee will be sent copies of the records of all decisions within the same time scale, by the person responsible for publishing the decision.

�� That notice will bear the date on which it is published and will specify that the decision will come into force, and may then be implemented, on the expiry of five working days after the publication of the decision, unless an Overview and Scrutiny Committee objects to it and calls it in.

�� During that period, the proper officer shall call in a decision for scrutiny by the Committee if so requested by any two Members of the Council not serving on the Executive and shall then notify the decision taker of the call in. he shall call a meeting of the Committee on such date as he may determine, where possible after consultation with the chairman of the Committee, and in any case within ten days of the expiry of the call-in period.

�� If having considered it, the Overview and Scrutiny Committee is still concerned about the executive decision, then it may refer it back to the decision making person or body for reconsideration, setting out in writing the nature of its concerns or refer the matter to full Council. If referred to the decision make they shall then reconsider within a further five working days, amending the decisions or not, before adopting a final decision (which shall not be subject to call in).

�� If following an objection to the executive decision, the Overview and Scrutiny Committee does not meet in the period set out above or does meet but does not refer the matter back to the decision making person or body, the decision shall take effect on the date of the Overview and Scrutiny meeting or at the expiry of the five days period from the decision to call in the matter.

�� If the matter was referred to full Council the Council meeting should be convened within five days of that referral. If the Council does not object to a decision which has been made, then no further action is necessary and the decision will be effective in accordance with the provision below. However, if the Council does object, it has not locus to make decisions in respect of Executive decisions unless it is contrary to the policy framework, or contrary to or not wholly consistent with the budget. Unless that is the case, the Council will refer any decision to which it objects back to the decision making person or body, together with the Council�s views on the decision. That decision making body or person shall choose whether to amend the decision or not before reaching a final decision and implementing it. Where the decision was taken by the Executive as a whole or Committee of it, a meeting will be convened to reconsider within five working days on the Council request. Where the decision was made by an individual, the individual will reconsider within five days of the Council request.

�� If the Council does not meet, or if it does not refer the decision back to the decision making body or person, the decision will become effective on the date of the Council meeting or expiry of the period in which the Council meeting should have been held, whichever is the earlier.

APPENDIX C

ARTICLE 6 � OVERVIEW AND SCRUTINY COMMITTEES

6.01 Terms of reference The Council will appoint the Overview and Scrutiny Committees set out in the left hand column of the table below to discharge the functions conferred by section 21 of the Local Government Act 2000, the Police and Justice Act 2006, or regulations under section 32 of the Local Government Act 2000 in relation to the matters set out in the right hand column of the same table.

External

Providing a scrutiny role of outside agencies (including the Council�s partners and the major utility providers)

Health related issues including discharging the Council�s responsibilities in respect of the Health and Social Care Act

Crime and Disorder issues including discharging the Council�s Overview and Scrutiny responsibilities in respect of the Police and Justice Act, 2006

The impact of the Council and Responsible Partners on community safety within the Borough Council�s area, including the Safer Maidstone Partnership

The development and implementation of the Council�s community plan (LSP)

The external relationships of the Council.

Lifelong Learning � Influencing external learning providers to improve the training and skills offer in the Borough

Social Inclusion and the Council�s specific initiatives to promote it

Young people including the youth forum

APPENDIX D

ADDITION TO OVERVIEW AND SCRUTINY PROCEDURE RULES

The following addition is proposed to the overview and scrutiny procedure rules in relation to the External Overview and Scrutiny Committee taking on the function of the Crime and Disorder Committee.

Procedure rules for the External Overview and Scrutiny Committee when acting as the Crime and Disorder Overview and Scrutiny Committee.

Co-option of Additional Members

The External Overview and Scrutiny Committee may co-opt additional members from those persons and bodies who are responsible authorities within the meaning of section 5 of the Crime and Disorder Act 1988, and from those persons and bodies with whom the responsible authorities have a duty to co-operate under section 5(2) of that Act (the �co-operating persons and bodies�), subject to the provisions set out in that regulation. To the extent of their membership, co-opted members have the same entitlement to vote as any other member.

Frequency of Meetings

The External Overview and Scrutiny Committee shall meet to carry out the functions required as the crime and disorder committee to review or scrutinise decisions made, or other action taken, in connection with the discharge by the responsible authorities of their crime and disorder functions, no less than twice in every twelve month period.

Requests for Information

Responsible authorities or co-operating persons or bodies must provide such information requested of them by the crime and disorder committee, subject to the provisions in that regulation.

Attendance of Responsible Authorities

The External Overview and Scrutiny Committee when carrying out the functions of the crime and disorder committee may require the attendance before it of a representative of a responsible authority or of a co-operating person or body in order to answer questions, subject to the provisions in that regulation.

Reports and Recommendations to Responsible Authorities

When the External Overview and Scrutiny Committee carrying out the functions of the crime and disorder committee makes a report or recommendations to a responsible authorities and co-operating persons or bodies in accordance with section 19(8)(b) of the Police and Justice Act 2006, the responses to such report or recommendations of each relevant authority, body or person shall be in writing and within 1 month from the date of the report or recommendations or, if this is not reasonably possible, as soon as possible thereafter.

The External Overview and Scrutiny Committee shall review such responses and monitor the action (if any) taken by the relevant responsible authorities, co-operating persons or bodies in accordance with its powers under section 19(1) of the 2006 Act.�

APPENDIX E

Maidstone Borough Council, Councillor Call for Action Protocol

1. Introduction

1.1 Councillor Call for Action (CCfA) seeks to strengthen the role of the Ward Councillor, encouraging them to resolve local problems on behalf of residents. The Act allows ward councillors to place Councillor Calls for Action onto scrutiny agendas for resolution and action. The legislation introduced under the Local Government and Public Involvement Act 2007extends the power of overview and scrutiny in two ways:

so that any Member of the Council can refer a local government� matter to O&S committees; and

��

that matters which can be referred include matters which the Council and its partners are delivering through the Local Area Agreement and "local crime and disorder" matters.

��

1.2 The CCfA best Practice guidance released by CfPS and the IDeA refers to the importance of concentrating on outcomes rather than process when dealing with CCfAs this protocol is therefore a light touch approach.

1.3 The protocol outlines what constitutes a CCfA, what should be excluded and the process for dealing with a CCfA. The protocol applies to CCfAs related to crime and disorder matters as well as local government matters.

2. What is Councillor Call for Action?

2.1�� Councillor Call for Action has been introduced by the government under the Local Government and Public Involvement in Health Act 2007, to strengthen the role of the ward councillor. The CCfA is a process for a Councillor to act on behalf of residents to resolve a local issue of concern, acting as a last resort for people who cannot get issues resolved through any other means, this can include crime and disorder matters.

Local Government Matter �� under section 21A, a CCfA needs to relate to a �local government matter�. This could be interpreted narrowly, to mean only those issues under the direct control of the authority. However, to give full effect to CCfA the interpretation of �local government matter� needs to be broader. This includes issues relating to the council�s partners, in line with the area focus of Comprehensive Area Assessment (CAA), and the fact that an authority�s duties increasingly impact on other organisations, and involve partners within and outside the Local Strategic Partnership (LSP).[2]

3. Matters that can not be raised as a Councillor Call for Action

3.1�� The following matters have been excluded under section 21A of the Local Government Act 2000, introduced under section 119 of the Local Government and Public Involvement in Health Act, 2007:

a) any matter relating to a planning decision;

b) any matter relating to a licensing decision;

c) any matter relating to an individual or entity in respect of which that individual or entity has a right of recourse to a review or right of appeal conferred by or under any enactment;

4. CCfA Process

4.1�� In accordance with the national best practice guidance Overview and Scrutiny should be the last stop for a CCfA. The expectation will be on the Ward Councillor to have tried to resolve an issue using all available mechanisms (including partnership working when appropriate) prior to referring the matter to the Overview and Scrutiny Committee. When a matter is referred to the Overview and Scrutiny Committee it will be up to the relevant Overview and Scrutiny Chairman and the Proper Officer whether the matter is progressed and taken forward by scrutiny. The process of determination by the Overview and Scrutiny Chairman with the Proper Officer represents a sifting process to determine if the matter is a local government matter and to determine whether the matter is excluded under paragraph 3 above. The possible reasons for rejecting a CCfA are outlined at paragraph 4.2 below. If the CCfA relates to a crime and disorder matter than this must be referred to the Crime and Disorder Scrutiny Committee which in Maidstone Borough Council is the External Overview and Scrutiny Committee.

4.2�� Referral to Scrutiny

The Chairman of the relevant O&S Committee will then determine with the Proper Officer whether to take the CCfA forward . The proper officer will inform the Ward Councillor whether they will accept the CCfA within 5 working days. If the CCfA is a crime and disorder related matter then responsible partners must be notified (CDRP Members).

Reasons a Chairman may not take the CCfA forward to Committee could include:

� Not enough information has been provided;

� More could be done to resolve the issue at a local level, e.g. key people have not been contacted;

� The CCfA is, or has stemmed from, a vexatious discriminatory or unreasonable complaint;

� The matter has recently been examined by O&S (though the Ward Councillors may argue that certain aspects were not sufficiently covered hence a need for a CCfA);

� The matter is the subject of an ombudsman complaint or other official complaints procedure;

� The matter falls under any other excluded matters (see paragraph 3 above)

If a CCfA is rejected for consideration by scrutiny the ward councillor will be notified in writing within 5 working days of lodging the CCfA. Where it is a Crime and Disorder CCfA all responsible partners (CDRP Members) must be notified. Ward Councillors will have the opportunity to reply to the Chairman perhaps with further information to substantiate the CCfA.

If the CCfA is accepted, the relevant Cabinet Members, Officers and/or partners will be notified by the Chairman.

4.3�� Ward Councillor Process for resolution of a CCfA:

a) Public request for action or issue identified by local ward councillor

b) Discuss with other ward councillors if a multi-member ward and agree action

c) Take steps to resolve the issue through existing mechanisms such as liaising with partners, county and parish councillors or raising with officers

d) If unresolved and the matter can be taken no further by the ward councillor then refer to the relevant Overview and Scrutiny Committee by completing �the councillor call for action form� and submit this to the Proper Officer (the Overview and Scrutiny Manager) for action.

e) Overview and Scrutiny Committee either:

� Rejects the CCfA and notifies the Councillor who in turn should inform the public;

� Accepts the CCfA and arranges to consider the CCfA, notifying partners as appropriate. Following which they will determine their response and relay this to the Councillor and Partners as appropriates

5. Process for Dealing with a CCfA by a Scrutiny Committee

5.1�� The Chairman and Proper Officer will determine if a special meeting outside the calendar of meetings is required and call a meeting, if not then the CCfA will be dealt with at the next available meeting of the Committee.

5.2�� The Chairman in consultation with the Ward Councillor and Scrutiny Team when considering the meeting should give consideration to :

� Witnesses;

� Notifying and Inviting Partners

� Evidence required;

� Key questions;

� Timescales; and

� Aims and objectives for the meeting.

��

5.3�� In a similar fashion to the call-in process at the meeting the Committee will be expected to reach a decision on whether to:

1. Take no action; or

2. Refer the matter to the Executive/Council/Partner Organisations with recommendations; and/or

3. Carry out a full scrutiny investigation.

5.4�� Any report and recommendations arising from the Committee meeting will be made available and sent to all agencies involved with the CCfA within 5 working days of the meeting, in the case of a crime and disorder matter, reports and recommendations will be sent to the responsible authorities as listed in the Police and Justice Act 2006.

[1] Councillor Call for Action, Best Practice Guidance, CfPS and IDeA, 2009,

[2]� Councillor Call for Action, Best Practice Guidance, IDeA and CfPS, 2009