*PART 1 – PUBLIC DOCUMENT
AGENDA ITEM No.
10
TITLE OF REPORT: AMENDMENT TO THE CONSTITUTION
REPORT OF THE MONITORING OFFICER
1.
SUMMARY
This report recommends an amendment to the Council’s Constitution following the
recent review of the Constitution which was discussed at Annual Council on 20 May
2010. This amendment if approved will ensure that the Council is following good
administrative practice.
2.
FORWARD PLAN
This matter is not a key decision and therefore is not included in the forward plan.
3.
BACKGROUND
3.1
The Council is required to prepare and maintain a Constitution setting out
prescribed governance information including: a summary, articles, the scheme of
delegation to officers and terms of reference of committees for discharging the
functions of the authority, the procedural and other standing orders, codes and
protocols regulating the behaviour of Members and staff, the scheme of Members'
allowances, details of the authority's staff management structure and of its
executive Members.
3.2
On 20 May 2010, Council considered a report from the Acting Monitoring Officer
recommending a series of amendments to the Constitution including an amended
committee structure.
3.3
The Minutes of Annual Council record that an amendment to Recommendation
9.2.2 of the Report was moved and seconded that sought to confirm that “SubCommittees may include Council Members (and their substitutes) who are not
Members of the parent Committee”. Following a debate the amendment was lost.
3.4
Following the conclusion of the debate on the substantive motion, Council resolved
that the recommendations in the Report be approved.
3.5
Subsequent to the Report from the Acting Monitoring Officer, the Democratic
Services Manager presented a Report at the same meeting on the appointment of
Members of committees.
3.6
Notwithstanding the debate referred to at paragraph 3.4 above, which could be
seen as a fairly clear indication of the direction in which the Council wished to
proceed, there was further debate in relation to the membership of SubCommittees. During the debate, it was pointed out that the Constitution is silent in
relation to how Sub-Committees should be structured and formed. Following that
debate it was resolved:
COUNCIL (30.6.10)
RESOLVED:
(1)
That the seats allocated to each political party on the Committees to which
Section 15 of the Local Government and Housing Act 1989 applied and the
seats allocated to each political party on the bodies to which Section 15 of
the Local Government and Housing Act 1989 did not apply be as set out in
Appendix A to these Minutes;
(2)
That, subject to the outcome of the discussion between the Political Group
Leaders regarding the composition of the Finance and Performance Scrutiny
Sub-Committee and Partnerships Scrutiny Sub-Committee, Members be
appointed to the various Committees and other bodies in accordance with
the wishes of the individual groups as detailed in Appendix B to these
Minutes.
3.7
This Report follows up on the outcome of the discussion between the Group
Leaders.
4.
ISSUES
4.1
Following the resolution at paragraph 3.6 above, the Group Leaders met with the
Chief Executive and the Monitoring Officer on 1 June 2010 to discuss the
appointment of Members and substitute Members to Sub-Committees. It was
concluded that the Monitoring Officer would bring a further Report back to Council
for Members to further consider the issue.
4.2
The Constitution is not currently explicit about the structure or membership of
Committees and Sub-Committees.
4.2.1
In the situation under discussion it is clear that the Sub Committees are SubCommittees of the Overview and Scrutiny Committee and not Sub Committees of
the Council. The advice given at the meeting of Annual Council is that Members
and substitute Members of Sub-Committees should be Members of the relevant
Parent Committee. This advice was offered on the basis that it is a matter of good
administrative practice for the following reasons:
4.2.2
•
Members of the Sub-Committee are familiar and up-to-date with the work of
the Parent Committee;
•
It enables a more detailed and accurate transmission of knowledge from the
Committee to the Sub-Committee; and helps the smooth and accurate
administration of the business of the Sub-Committee; and
•
It makes for more robust and defensible forming of recommendations. The
Overview and Scrutiny Committee and its Sub-Committees have an
important role to undertake as a check and balance on the operations and
decisions of the Council.
To assist in understanding the advice offered, it may be helpful to consider what
happens when the Council creates committees. Council takes the membership and
substitutes from itself i.e. the entire membership of the Council, Members and
substitutes for committees are therefore drawn from the parent committee which in
this case is full Council. The advice in relation to Sub-Committees is entirely
consistent with this. Members and substitutes for the Sub-Committees should be
drawn from their parent committee which in this case is the Overview and Scrutiny
Committee.
COUNCIL (30.6.10)
4.2.3
The Monitoring Officer has sought the views of colleagues in five other Councils
(Broxbourne, Harrow, Hertsmere, Herts County and Peterborough), all of whom
concur with the advice being offered and the rationale for it; namely that it accords
with good administrative practice. Whilst it is relevant to note that none of those
Council’s currently operate a Sub-Committee system, it is nevertheless the position
that the advice offered to the Council, is supported on the basis that it represents
good administrative practice.
4.2.4
It could be argued that an alternative approach that permits membership of a SubCommittee to be drawn from outside the Committee could have merit, such as
enabling increased breadth of input by Members, and enabling Members to gain
experience. It is also accurate that Members of the Overview and Scrutiny
Committee, by definition are not part of the Executive and yet are required, as
appropriate, to scrutinise the decisions of Cabinet. However Scrutiny of Executive
decisions is an inherently different function to that of a Sub-Committee working on
behalf of its parent committee.
4.2.5
Therefore on balance, for the reasons offered at paragraph 4.2.1 above, the advice
remains that all Members and substitutes of a Sub-Committee should come from
the membership of the parent Committee.
5.
PROPOSED SOLUTION
5.1
The Monitoring Officer advises that an amendment be made to the Standing Orders
contained in the Councils Constitution that sets out how Committees and SubCommittees should be structured and formed. This amendment should take effect
from 1 July 2010.
5.2
The amendment would make clear that Members and substitutes for a Committee
and its Sub-Committee(s) must be taken from the membership of the Parent
Committee.
5.3
In the event that this solution is agreed, some membership of the Finance and
Performance Scrutiny Sub-Committee and Partnerships Scrutiny Sub-Committee
will need to be amended. The Group Leaders will therefore be asked to give their
revised nominations to the Democratic Services Manager.
6.
LEGAL IMPLICATIONS
6.1
The Monitoring Officer has a duty to:
o
o
keep the Constitution under review and report back to Members at full
Council any changes that are required to it. This would comprise any
legislative or regulatory changes.
to make recommendations for ways in which the Constitution can be
amended to better achieve its purpose, which includes comparing practices
within other Councils and considering examples of national best practice.
6.2
Section 37 Local Government Act 2000 requires the Council to have in place a
Constitution and to keep that Constitution under review.
6.3
Only full Council can sanction amendments to the Constitution save for the
delegation that full Council agreed to the Monitoring Officer at its annual meeting on
20 May 2010.
COUNCIL (30.6.10)
6.4
Section 102 of the Local Government Act 1972 provides that Council appoints
committees and that committees appoint sub-committees. Therefore it is the role of
a Committee to create and appoint to the Sub-Committees.
7.
FINANCIAL AND RISK IMPLICATIONS
None arising from this report.
8.
HUMAN RESOURCE AND EQUALITIES IMPLICATIONS
None arising from this report.
9.
CONSULTATION WITH EXTERNAL ORGANISATIONS AND WARD MEMBERS
There was a detailed discussion between Group Leaders, the Monitoring Officer
and the Chief Executive.
10.
RECOMMENDATIONS
10.1
That the Council considers and approves the insertion of Standing Order 3A from 1
July 2010 into the Constitution:
3A. Creation of and Appointment to Committees and Sub-Committees
3A.1
3A.2
3A.3
3A.4
The Council may create Committees and appoint Members and substitutes
to those Committees.
The Council may recommend to the Committee the creation of (a) SubCommittee(s)
Committees may create (a) Sub-Committee(s) and appoint Members and
substitutes to those Committees.
The membership and substitutions for all Sub-Committees will be allocated
from the membership of the parent Committee, but excluding the substitutes
for that Committee.
10.2
That the Council confirms that where the current membership of the Finance and
Performance Scrutiny Sub-Committee and Partnerships Scrutiny Sub-Committee
does not comply with this new Standing Order, the Group Leaders will be required
to give revised nominations to the Democratic Services Manager.
11.
REASONS FOR RECOMMENDATIONS
To ensure the Council meets its statutory obligations and continues to improve its
working practices by adhering to good administrative practice.
12.
ALTERNATIVE OPTIONS CONSIDERED
None.
13.
CONTACT OFFICERS
Katie White Corporate Legal Manager and Monitoring Officer ext 4315
katie.white@north-herts.gov.uk
14.
BACKGROUND PAPERS
None.
COUNCIL (30.6.10)