Constitution Working Party Please Contact: Emma Denny Please email: emma.denny@north-norfolk.gov.uk Please Direct Dial on: 01263 516047 November 12th 2012 A meeting of the Constitution Working Party will be held in Meeting Room 1 at the Council Offices, Holt Road, Cromer on Thursday 15th November 2012 at 2.00 pm Sheila Oxtoby Chief Executive To: Mrs A M Fitch-Tillett, Ms V R Gay, Mr K E Johnson, Mrs A M Moore and Mrs H Thompson. If you have any special requirements in order to attend this meeting, please let us know in advance If you would like any document in large print, audio, Braille, alternative format or in a different language please contact us Chief Executive: Sheila Oxtoby Strategic Directors: Nick Baker and Steve Blatch Tel 01263 513811 Fax 01263 515042 Minicom 01263 516005 Email districtcouncil@north-norfolk.gov.uk Web site northnorfolk.org AGENDA 1. TO RECEIVE APOLOGIES FOR ABSENCE 2. MINUTES (attached – p. 1) To approve as a correct record the minutes of the meeting of the Constitution Working Party held on 22 August 2012. 3. ITEMS OF URGENT BUSINESS To determine any items of business which the Chairman decides should be considered as a matter of urgency pursuant to Section 100B(4)(b) of the Local Government Act 1972. 3. DECLARATIONS OF INTEREST Members are asked at this stage to declare any interests that they may have in any of the following items on the agenda. The Code of Conduct for Members requires that declarations include the nature of the interest and whether it is a personal or prejudicial interest. 4. REVIEW OF THE CONSTITUTION (attached – p. 3) (Appendix A – p. 8) (Appendix B - p.12) The Monitoring Officer has been instructed by the Constitution Working Party and the Chief Executive to revise the Council's constitution. The changes reflect:• • • • Changes in the law Changes in the internal structure of the Council, titles of postholders etc. Improvements to the existing constitution suggested by the Officer responsible (for example changes to the financial rules as discussed with Karen Sly). Specific changes designed to deal with matters not envisioned when the previous Constitution was drafted, for example, technological advances. The proposed amendments have been circulated to Heads of Service for comment. The comments and additional amendments are attached at Appendix A Following a further request from the Chief Executive, the Monitoring Officer has also provided examples of comparative practice for dealing with Members’ questions at Full Council. These are attached at Appendix B. Members are asked to identify and discuss those aspects of the Constitution that need to be updated or amended and to agree the process for completing the review and reporting back to Full Council. The Working Party’s Terms of Reference are attached at page 16. The latest version of the Constitution amended to incorporate the tracked changes proposed by the Monitoring Officer, has been provided to Members of the Working Party. 5. DATE OF NEXT MEETING Members are asked to bring their diaries for this item. CONSTITUTION WORKING PARTY Minutes of a meeting of the Constitution Working Party held on 22 August 2012 in the Cabinet Office, Council Offices, Holt Road, Cromer at 2.00 pm. Members Present: Working Party: Officers in Attendance: 1 Ms V R Gay, Mr K E Johnson, Mrs A M Moore and Mrs H Thompson. The Interim Monitoring Officer and the Democratic Services Team Leader. TO RECEIVE APOLOGIES FOR ABSENCE Apologies were received from Mrs A M Fitch-Tillett. 2 ITEMS OF URGENT BUSINESS This was the first meeting of the Constitution Working Party since 28 March 2012. The minutes from that meeting had not been signed off. Copies of the minutes were distributed to Members. They were agreed as a correct record subject to the following amendment: The first sentence in Minute 6(a) should read: “The amendment regarding electronic equipment was agreed”. 3 DECLARATIONS OF INTEREST All Members declared a personal and non-pecuniary interest in the Constitution. 4 THE CONSTITUTION The changes to the Constitution instructed by Full Council on 25 July 2012 included: a) Changes to governance, standards and conduct arrangements made by the Localism Act 2011 b) Management restructure. c) Other issues identified by the Members of the Constitution Working Party. Issues identified by Members of the Constitution Working Party were: a) Use of electronic equipment and recording during meetings: concerns were expressed that emails could be sent between councillors or from people in the public gallery to councillors, during meetings. The latter could have implications regarding breach of Development Committee legislation. There could, however be occasions when email communications between Members were beneficial to the conduct of the meeting. Members were not required by law to be in isolation during a meeting. Conversely, there was a possibility of email being used for covert whipping arrangements. The Interim Monitoring Officer would reflect on these concerns and come back to the next meeting with some options and proposals. Constitution Working Party 1 1 22 August 2012 b) A paper free Council: constitutions tended to use terms such as “must publicise” or “must make available” which did not specify if this would be on paper or by electronic methods. However equality legislation required that paper copies of documents should be made available for people who required them. Some Members believed that no more printed copies of the Constitution should be produced. c) There were presentational issues such as use of font and page set-up that needed attention. d) All aspects of the same matter should be corrected throughout the Constitution at the same time. e) Part 5, Council Structure, political balance: the Interim Monitoring Officer would ensure that this section reflected the legislation regarding political groups. f) Opposition Business: this must relate to a Council, not an Executive matter, although this would not prevent the Council from lobbying the Cabinet. The Constitution needed tidying and updating. The Interim Monitoring Officer would return to the next meeting with a list of everything that was anomalous. In response to a Member’s question he said that the contents of the Constitution were fairly standard throughout Councils with Leader and Cabinet arrangements. 5 DATE OF NEXT MEETING The date of the next meeting would be arranged later. The Working Party aimed to take the revised Constitution to Full Council on 24 October 2012. The meeting closed at 2.50 pm. Chairman Constitution Working Party 2 2 22 August 2012 Agenda Item 4 NORTH NORFOLK DISTRICT COUNCIL - REVIEW OF CONSTITUTION Instructed by the Constitution Working Party and the Chief Executive Officer I have revised the Council's constitution as set out below. 1. A comparite version showing the changes has been sent separately to Members 2. The changes reflect:• • • • 3. Changes in the law Changes in the internal structure of the Council, titles of postholders etc. Improvements to the existing constitution suggested by the Officer responsible (for example changes to the financial rules as discussed with Karen Sly). Specific changes designed to deal with matters not envisioned when the previous Constitution was drafted, for example, technological advances. In terms of the underlying legal obligation to have a Constitution the law (Section 9P of the Local Government Act 2000) says only that an Authority must include in its Constitution its Code of Conduct, its standing orders and any other document it wishes or which the Secretary of State requires. The Secretary of State has never issued any directions. The contents of a Constitution are therefore reasonably flexible but North Norfolk, as with other Authorities, appropriately includes in the Constitution all such matters relating to structures, processes and other information that the public reasonably require for their dealings with the Council. 4. The Constitution is required to be a publicly available document. 5. The attached table sets out commentary on the changes where commentary is required. 3 Agenda Item 4 Paragraph No. (from Old Constitution finalised New Constitution will need to be renumbered and formatted throughout) Reasons for the Change Chapter 1 6.1 Changes made by the Local Authorities (Executive Arrangements) (Meetings and Access to Information)(England) Regulations 2012 (“the 2012 Regulations”) 9.2 The first "Independent Members" stems from the old Standards Arrangements under the Local Government Act 2000. This has all been repealed by the Localism Act 2011 and I have proposed in the New Constitution to cease using this phrase. In the public mind it was likely in any case to be problematic because of course it also has the meaning of an elected member who is not a member of a political party. I will suggest using "co-opted members" to refer to non-elected members sitting on Council Committees. 11.2 Sixth bullet point Forward plan abolished by the 2012 Regulations. 12.1 (d) Tightening up of wording. 13.3 Post of Legal Democratic Services Manager now abolished. Replaced in this case with Legal Services Manager. Changes made throughout. Chapter 2 2.1 (m) The "political balance" rules apply whenever the Council is appointing to most Committees and there is no requirement in the Constitution to refer to it as it is a matter of law. 5.1 (d) "Community Strategy" now "Sustainable Community Strategy" . 2.4 (j) (ii) Resulting from the Localism Act 2011 changes to Standards and Ethics arrangements. 10. (interest of members) All these amendments reflecting the changes made by the Localism Act 2011. 4 Agenda Item 4 14.1 (e) Reflecting changes to the Local Government Act 2000 Leader and Cabinet arrangements - which North Norfolk District Council operates. Cabinet members are now appointed by the Leader not the Council. 20.3 The new wording is proposed to deal with the following situations:- 24. • To prevent the distraction during the meeting of any person present speaking into a telephone. • To prevent elected members communicating with each other via telephone (text messages or emails for example) during a meeting so as to maintain openness and transparency of debate. • To prevent any person making an unauthorised recording of the proceedings without the consent of members or the Chairman (consent required by virtue of Local Government Act 1972). This duplicates paragraph 15.3(a). Chapter 3 Part 1 The Cabinet Changes reflect changes to the legal form of Leader and Cabinet arrangements so that now the Leader appoints members of the Cabinet. Para 4 and 5 Councillors can no longer be suspended (Localism Act 2011) Part 2 Terms of reference of the Cabinet 13.1 The previous wording appeared slightly narrow and I have broadened this to deal with any such proceedings. Part 2 15.1 Deleted as it duplicates Chapter 3 Part 3 paragraph 2.1(e). Part 4 Cabinet Procedure Rules Paragraph 4 Key Decisions Changes made by the 2012 Regulations. Chapter 4 Part 2 Amendment made as per Mary’s email of 3 September 5 Agenda Item 4 Chapter 5 6.2 paragraph 8.3 No obligation under political balance rules to establish a committee with a minimum number. Again, proposals as to dealing with use of telephones etc. during meetings. Chapter 6 Part 2 6.8 and 6.9 Delegations as to litigation matters now appropriate to be delegated to Legal Services Manager. 3.3, 3.4 and 3.5 Localism Act 2011 amendments Chapter 7 Wholesale replacement triggered by Localism Act 2011 changes to Ethics and Conduct regime. Note that employee matters not affected. Chapter 8 paragraphs 13 to 16 and 17.1 Chapter 9 Changes reflecting 2012 Regulations. To be discussed with Karen Sly Part 1 paragraph 6.40 "Corporate Property Officer" is replaced with "Head of Assets and Leisure". Part 2 paragraph 4.4 "Council's Solicitor" replaced with "Head of Legal Services" Chapter 11 paragraph 2.1 (d) For the reasons noted above I have removed references to "Independent Members". Do we need to add the expenses paid to the Independent person? 4.3 Ditto 13. Removed as suspension was a sanction contained in the now repealed Conduct Provisions of the Local 6 Agenda Item 4 Government Act 2000. Schedule 2 Function of the Leader of the Council The Leader of the Council now appoints the Cabinet Members under the amended Local Government Act 2000. Chapter 12 paragraph 5 The powers to promote wellbeing are now disapplied as regards Local Authorities in England. They have been replaced with the power of general competence in the Localism Act 2011. Whereas the power of general competence will undoubtedly assist in dealings with outside bodies it is of general application in all the Authorities functions and probably does not merit specific mention here. Glossary of Terms As noted above I have removed references to Independent Members leaving only the definition that pertains to elected members not in political groups. Index I suggest that we leave this until the changes to the Constitution are all settled then do numbering, formatting and indexing. 7 Appendix A Comments received from Julie Cooke, Head of Organisational Development: Chapter 1 Should the references to Legal Services Manager read Head Of Legal? Chapter 2 20.3 Refers to keeping mobiles switched on (but in silent mode) and chapter 5 (8.3) says that all mobiles should be switched off. Two chapters appear to contradict each other. Chapter 6 1.2 Information contained in the table at 1.2 is out of date. 1.3 Information out of date. 1.4 Replace ‘service managers’ with Heads of Service? Service managers are referred to throughout the document. Under full delegation to Chief Officers. Could we specifically include ‘hearing disciplinary and redundancy appeals’? Under delegations – 6.2 and 6.3. Refers to the Head of Planning and Building Control. Steve’s new title is Head of Development Management. 6.8 / 6.9 also refers to Legal Services Manager. Part 3 – the table includes job titles which are no longer used ie Strategic Director Environment. Chapter 7 The employee code of conduct could do with a number of changes as listed below. It is however referred to in the statement of terms and conditions of employment for all staff so any changes would need to be consulted on with UNISON. General points: If possible it would be good to have a definition of chief officers in the code of conduct. Specific points: Point 7. Should that read ‘professional body’s’? Point 8. After the LGHA 1989. Could we put as amended? Point 8 and 9. We could add that the restrictions are contained within the written statement of terms and conditions for the relevant officers. Point 17. The grades referred to are wrong under the new pay model. 8 Appendix A Current: Any employee of local grade 5 or below does not require prior permission to undertake other work, but must, within 4 weeks of taking up other work, disclose its nature and extent, in writing, to their Chief Officer. If graded local grade 6 or above you must obtain written permission from your Chief Officer prior to undertaking any private work or other employment. Proposed: Any employee of local grade 8 or below does not require prior permission to undertake other work, but must, within 4 weeks of taking up other work, disclose its nature and extent, in writing, to their Chief Officer. If graded local grade 7 or above you must obtain written permission from your Chief Officer prior to undertaking any private work or other employment. Point 20. Needs to refer to the correct section of the constitution rather than contract rule 22. Point 21. Needs to refer to the Head of Organisational Development. Point 23. The references to equality strands are out of date and could reflect the ones used in our equality statement which is:Equalities Statement North Norfolk District Council wishes to promote equality and has a number of obligations under equality legislation. All employees are expected to adhere to this procedure in line with these obligations. Reasonable adjustments or supportive measures should be considered to ensure equality of access and opportunity regardless of age, gender, gender reassignment, pregnancy, maternity, race, ethnicity, sexual orientation, marriage, civil partnership, disability, religion or belief. Point 29 and 33. Should we refer to the register of gifts? Point 30. Needs to refer to the financial regulations as set out in the constitution. Part 4. Member / Officer Protocol. 8.3 Refers to ‘directorate’. We no longer have directorates. Chapter 9 All references to Service Managers changed to read Heads of Service? 6.3 There are also references to ‘corporate management team’ which need to be amended to read ‘corporate leadership team’. 9 Appendix A Chapter 10 1.4 Needs to include appeals. 5.1 Do you need to refer to the Employment Committee? 7.5 / 8.1 Both need to have appeals to Chief Officers? Need to ensure that we are clear that dismissals and appeals (other than chief officers) are not to Members. Regards Julie 10 Appendix A Comments from Steve Oxenham, Head of Development Management: Further to our helpful discussion this afternoon, I would confirm that there a number of errors in the current Constitution which you agreed to follow up, together with a number of areas where there needs to be a discussion regarding potential updates and improvements. In my view these include the following:The Planning Protocol requires updating in the light of new freedoms granted under the Localism Act; it would be better if this did not require a revision to the Constitution each time! Development Committee terms of reference. ‘Head of Planning & Building Control’ needs to be replaced by ‘Head of Development Management’. More importantly, following recent difficulties we need to find a way of protecting the Council’s interest in those cases where the Committee may be minded to make a decision which is lawful but potentially indefensible. Para 5 needs to be reviewed to cover such cases; even in cases which are deferred the roles of the Monitoring & S.151 Officers only offer limited protection. I know that Sheila has expressed concern about this matter. Conditional and Default Delegation. Under 6.2, again, HoP&BC needs to be replaced by Head of Development Management throughout. Condition (e) gives rise to some difficulties of interpretation for Officers in relation to ‘against the Council’s adopted planning policy’ which we would like to discuss with the Monitoring Officer. We need a procedure whereby the Dev C’tee Chairman and Vice-Chairman may agree to the use of delegated powers in those cases where Local Members are prejudiced from being involved because of personal interests, e.g. the location of their property. Note 4 requires updating in the light of the Council’s decision on 24 October regarding wind turbines and solar farms. Am I safe in assuming that the ‘Register of Appointment of Deputies’ is still the appropriate mechanism for recording delegated powers below Heads of Service? This too requires formal amendment and I would appreciate advice on how this should be carried out. I should be grateful if you would feed these thoughts into the process; no doubt there is pressure on time for this review, but it is important that we obtain a watertight and correct document this time, so I hope that sufficient time is allowed for these issues to be resolved. Steve. 11 Appendix B COUNCIL PROCEDURE - COMPARATIVE PROVISIONS 1. NORWICH CITY COUNCIL Appendix 1 paragraph 12 - questions by members. 12.1 Members of the Council may ask questions of the Leader of the Council, a Member of the Cabinet or the Chair of the Committee at Ordinary Meetings of the Council on any matter of Council business or issues which affect the Norwich Area. 12.2 At a meeting no Member may ask more than one question unless the time taken by questions is not exceeded 30 minutes in which case second questions will be taken in the order that they are received. If there are any questions which cannot be dealt with during this time period a written answer will be provided to the questioner within ten working days from the meeting. 12.3 A Member may only ask a question under Rule 12.1 above if either:- 12.4 i It has been received in writing or email by the Head of Law and Governance by 10am on the Wednesday in the week preceding the Council meeting; [ Council meetings are always on a Tuesday]or ii The question relates to urgent matters, they have the consent of the person to whom the question is to be put and the content of the question is given to the Head of Law and Governance in writing by 12 noon on the day of the meeting. The Head of Law and Governance may reject a question if it:i Is not about a matter a) for which the Council has a responsibility or b) which particularly affects the City. ii Is defamatory, frivolous or offensive; iii Requires the disclosure of confidential or exempt information. (See definitions under Sections 11.2 and 11.5 of Appendix 7 - Access to Information Procedure Rules.) 12.5 Written replies will be given to questions by the relevant Member of the Cabinet or Committee Chair, or their nominee, but shall not be the subject of any further debate. When a reply cannot conveniently be given at the Council meeting, a written answer will be circulated to the questioner within ten working days of the meeting. 12.6 The person asked the question may decline to answer but that fact shall be recorded in the Minutes of the meeting. 12 Appendix B 12.7 A member who has put a question may also put one supplementary question without notice to the member who has replied to his or her original question. A supplementary question must arise directly out of the original question or the reply. The Lord Mayor may reject the supplementary question on any of the grounds in Rule 12.4 above. 12.8 Unless the Lord Mayor decides otherwise, no discussion will take place on any question, but any member may move that a matter raised by a question be referred to the Cabinet or the appropriate Committee or Sub-Committee. Once seconded, such a motion will be voted on without discussion. 2. GREAT YARMOUTH BOROUGH COUNCIL 10. QUESTIONS BY MEMBERS 10.1 On reports of the Cabinet or Committees A member of the Council may ask the Leader or Chairman of a Committee any question without notice upon an item of the report of the Cabinet or a Committee when that item is being received or under consideration by the Council. 10.2 Questions on notice at full Council Subject to Rule 11.4 a member of the Council may ask:- • • • The Mayor A Member of the Cabinet The Chairman of any Committee or Sub-Committee A question on any matter to which the Council has powers or duties or which affects the Borough of Great Yarmouth. 10.3 Questions on notice at Committees and Sub-Committees Subject to Rule 11.4 a member of a Committee or Sub-Committee may ask the Chairman of it a question on any matter in relation to which the Council has powers or duties or which affect the Borough of Great Yarmouth and which falls within the terms of reference of that Committee or Sub-Committee. 10.4 Notice of Questions A Member may only ask a question under Rule 10.2 or 10.3 if either:a) they have given at least ten working days notice in writing of the question to the Head of Policy and Improvement or b) the question relates to urgent matters, they have the consent of the Mayor to whom the question is to be put and the content of the question is given to the Head of Policy and Improvement by 11am on the day of 13 Appendix B the meeting. (The person to whom the question is directed may waive these requirements). 10.5 Response An answer may take the form of 10.6 a) a direct oral answer b) where the desired information is in a publication of the Council or other published work or reference to that publication or c) where the reply cannot conveniently be given orally a written answer circulated later to the questioner with the Minutes of the meeting at which the question has been asked. Supplementary question A Member asking a question under Rule 10.2 or 10.3 may ask one supplementary question without notice of the Member to whom the first question was asked. The supplemental question must arise directly out of the original question or the reply. 3. SOUTH NORFOLK DISTRICT COUNCIL CONSTITUTION paragraph D13. Question from members of the Council D13.1 There will be a period of question and answer (for a time at the discretion of the Chairman) to each portfolio holder, Chairman of the Scrutiny, Planning and Licensing Committees. D13.2 Where any information asked for or required by a questioner is contained in a convenient document (which is for the Chairman of the Council to decide) if the questioner is referred to that document, that will be deemed adequate reply. D13.3 Where the reply to any question cannot conveniently be given orally it will be sufficient for the answer to be circulated to the Members of the Council with, or in advance, of, the Minutes of the meeting at which the question is asked. 4. OBSERVATIONS The asking of questions by Members at meetings of the Council appears to be a standard item on each meeting of the three Councils sampled. Norwich and Great Yarmouth's follow much the same form but South Norfolk's is far less prescriptive. The critical issues for managing the questions appears to me to be as follows:- 14 Appendix B 1. Subject matter of the question - Council business alone or Council business together with a second broader limb, for example, matters affecting the Council's area. This second limb may in practice create difficulties. If a matter affects the Council's area but is an executive matter should it be allowed to be raised at Council notwithstanding that the Council has no ability to determine such issues? Often members raise it in the form of “the council resolves to call upon the Cabinet to address this or that concern” or similar. 2. What notice period needed for questions (if any) and is the notice to be waived in matters of emergency (what could possibly be an emergency in the context of a meeting of Council?). Ten working days appears to be popular and fits in with NNDC’s motions notice, I believe. 3. How and by whom is the answer to the question to be delivered? Spoken live at the meeting? Pre prepared and referenced only? 4. What discretion should the proper Officer have to disallow questions when they are lodged and what power should the Chairman have to disallow questions if they are made at the meeting? 5. Should any debate be allowed upon the answer to a question? Usually no. Should there be a provision to refer the question and/or the answer to a separate body for consideration? Distinction between Questions and Motions Of course, Members also have the right to present motions to the Council, moving that a matter be considered and that a draft resolution be made. Clearly this has to be Council business as a matter of law. Council cannot resolve on matters within the jurisdiction of the Cabinet. Should Members be advised that the question and answer part of the meeting be restricted to the requesting and receiving of information and if debate or resolution is required then that should be the subject of a motion to Council? David Johnson 29/10/12 15 Constitution Working Party TOR 09 March 2012 Constitution Working Party Members The Constitution Working Party (CWP) will comprise of members nominated by Full Council to reflect the prevailing political balance of the Council. The CWP will be supported by the Monitoring Officer, a Democratic Services Officer and any other officer required from time to time to provide advice or information to the Members in fulfilling their role. The membership may be reviewed periodically. The CWP will meet at least annually. However, the need for periodic Constitutional amendments will require a flexible approach so that additional meetings may be called to accommodate matters that need to be addressed between each annual review. The CWP will report to Full Council with any recommended Constitutional amendments. Constitution Working party TERMS OF REFERENCE - 9 March 2012 Aim The aim of the CWP is to ensure that the Constitution is fit for purpose, up to date and enables the Council to properly discharge its obligations and manage its business efficiently, effectively and legally. Objective Under Paragraph 14.1 of Chapter 1 of the Constitution, “the Council has responsibility for monitoring and reviewing the operation of the Constitution to ensure that the aims and principles of the Constitution are given full effect. Such monitoring and review shall take place at least annually and be reported to Full Council.” Activities In order to fulfil this objective, the CWP will at least annually: 1. Consider the impact on the provisions within the Constitution arising from: • new or amending legislation • relevant audit recommendations • operational experience of applying the Constitution since April 2011 • inconsistencies, referencing, formatting or typographical errors • other relevant reviews or change of circumstances; 2. Prepare a schedule of changes, amendments or corrections as a result of the impacts identified at (1) above; 3. Report the results of the review to Full Council with appropriate recommendations for updating the Council’s Constitution. 16