A GUIDE TO OVERVIEW AND SCRUTINY OF COUNTY COUNCIL FUNCTIONS IN LEICESTERSHIRE

APPENDIX ‘C’ PROTOCOL ON EXCHANGE OF INFORMATION BETWEEN EXECUTIVE AND OVERVIEW & SCRUTINY

Introduction

This Protocol aims to supplement the Protocol on Member/Officer Relations (Part 5C of the LGA 2000 Constitution), by applying relevant provisions of the Constitution to the process of preparing the Annual Budget, in order to explain the parameters within which elected members and officers should be expected to operate. Although this Protocol was prepared primarily for the Budget preparation process, its principles should be relevant at other times of the year and in relation to other issues.

PRINCIPLES APPLYING TO INFORMATION REQUESTS

The principles which elected members and officers will expect to be followed when dealing with requests for information are as follows:-

A request for information should be appropriately directed – towards elected member or officer – and appropriately phrased.¹

Requests for information from officers should be made to the relevant Chief Officer or a senior officer of the Chief Executive’s or County Treasurer’s Department. Enquiries relating to service pressures linked to the budget process should be made to the Chief Officer concerned.

A request for information which is regarded by officers as coming within the ambit of Rules 23 and 24 of the Access to Information Procedure Rules (Part 4B) should be complied with, without the prior approval of the relevant member of the Executive.

A request for information which is likely to be regarded as being outside the ambit of Rules 23 and 24 should be made only in exceptional circumstances. The prior approval of the relevant member of the Executive will be required before such a request is complied with, wholly or partly. The relevant Executive member, not the officer, shall give any necessary explanation (if one is sought) for any decision not to provide access to documents falling outside the ambit of Rules 23 and 24. ²

Members of the Executive will attend the relevant Scrutiny Commission/Committee meetings and it is a matter for those elected members to deal with any explanation of, and justification for, policy choices within the Budget process.

Officers should be prepared to explain and justify any advice they have given to members of the Executive on any specific matter, provided that this is limited to questions of fact and explanation. (This is on the basis that officers serve the Council as a whole and their professional advice rightly should be available to all members of the Council).

Officers should avoid being drawn into a discussion about the merits of alternative policies or other matters which may be politically contentious.

All comments made by officers should be consistent with the requirement to be factual, honest, objective and politically neutral.

Overview & Scrutiny is, or should be, a member-led process and the role of identifying budget issues for detailed scrutiny therefore lies in the hands of Overview & Scrutiny elected members. Should officers involve themselves in this process they would put themselves at risk of being drawn into the political arena and put into question their role as politically neutral advisers. This does not mean that officers cannot play a part in the process. It is clearly legitimate, for example, for elected members to ask questions and seek information about specific aspects of the Council’s performance, which in turn could lead to Overview & Scrutiny members questioning members of the Executive about why it is being proposed that resources should be directed in any particular way and whether the level of such resources is appropriate

NOTES

¹For example, a request made to an officer in generalised terms such as “please supply a copy of all the advice given to the Executive on the Budget” would not be acceded to. Such a request couched in those terms is likely to be regarded as no more than a fishing expedition with no specific objective in mind, rather than required for a proper evaluation of the results of an analysis of policy carried out by Overview & Scrutiny.

Such a request also places the officer in a potentially difficult position. If the officer was under pressure to make full compliance with such a generally worded request, he or she might be in jeopardy of breaching the provisions of the Part 5C Protocol on the treatment of information supplied to officers on a party political confidential basis; and, furthermore, might also be under pressure to permit (without prior reference to a member of the Executive) the inappropriate disclosure of oral advice or non-qualifying documents as described in the footnote below.

²Elected members engaged in the Overview and Scrutiny arm have under the Constitution (Rules 23 and 24 of the Access to Information Procedure Rules (Part 4B)) additional rights of access to documents which are in the possession or control of the Executive and which contain material relating to any business transacted at a public or private meeting of the Executive.

However, these rights are subject to limitations:

firstly, the material must be in written form – oral advice or information is not accessible under the Part 4B Rules;

secondly, the documents must be in the possession or control of the Executive;

thirdly, the documents must relate to business transacted at a meeting of the Executive – other documents not related to transacted business, will not be accessible under the Rules; and

fourthly, the document must be a finalised and substantive version – a draft version of a document will not be accessible under the Rules.

Unless the document is covered by the limitations above, requested access will be given to qualifying documents, in accordance with the rights in the Rules, by the relevant officer without the prior approval of any relevant member of the Executive.

The Rules do not necessarily prevent additional access being granted, but by concession. In such cases, where access to non-qualifying documents is requested, the officer will consult the relevant member of the Executive on whether or not a concession should be granted. It will be for the relevant Executive member, not the officer, to decide and to give any necessary explanation for a decision not to grant concessionary access, if such an explanation is sought.

These limitations on access to documents are consistent with the views of the Secretary of State contained in paragraph 7.37 of the DETR Guidance:

“The Secretary of State recognises that the Executive will need time and space to “think the unthinkable” out of the public glare. The provision [Key Decisions to be taken in public] is therefore not intended to extend to early collective discussions where the Executive may decide to narrow the options under consideration and it also allows the Executive to have a political debate without officers present provided that a key decision is not decided at that meeting.”

The Secretary of State’s view supports the idea that effective administration will sometimes be served by the Executive being able to meet in private, provided that (consistent with the Constitution) no executive decisions are made at such a meeting. The County Council itself has recognised this through Rule 12 of the Access to Information Procedure Rules (Part 4B) which enables the Executive to meet in private.

A GUIDE TO OVERVIEW AND SCRUTINY OF COUNTY COUNCIL FUNCTIONS IN LEICESTERSHIRE

APPENDIX ‘C’ PROTOCOL ON EXCHANGE OF INFORMATION BETWEEN EXECUTIVE AND OVERVIEW & SCRUTINY

Introduction

PRINCIPLES APPLYING TO INFORMATION REQUESTS

further information