Reviewing governance, reviewing the constitution 

Posted on 11/06/2020 by Ed Hammond.

A lot of councils fairly regularly conduct reviews of their constitution. Your council may be one of them.

You might do them in-house (your Monitoring Officer or Head of Governance may lead) or you may bring in an external provider – a law firm for example. Getting qualified legal support on something like this is critical , but it’s not just a matter of law – making constitutions (and governance arrangements more generally) work effective hinges on behaviour and culture. The behavioural dynamics around governance and scrutiny – how politics plays into it, how member/officer relationships operate – are an area on which we have a recognised expertise.  

We want to bring the sector’s attention to the support that we can provide on this, through carrying out reviews of councils’ constitutions. Our reviews engage specifically with these kinds of details, with a view to supporting councils to understand how behaviours intersect with the rules written down on the page. As experiences go for a governance officer, there’s not much worse than working in a council where “getting round” the constitution is seen as a laudable aim or where the constitution is followed in the form but not in the spirit. Our support aims to assist councils to understand these dynamics and thinking about how values frame what we write about the systems of decision-making.

Councils will be thinking more seriously about the governance framework right now.  The experience of the last few month may have tested the resilience of your system and highlighted aspects of the constitution which are no longer fit for purpose.  Some of these challenges may only starting to make themselves felt, and you may be making “running repairs” to standing orders, rules of procedure, your scheme of delegation and the myriad other documents and systems which comprise your constitutional setup. It may be a struggle to keep up. Whatever you are doing, everyone’s next Annual Governance Statement is likely to make interesting reading. The question is – how can you embed some of this learning into how you make decisions in the future? With stretched internal capacity for the foreseeable future, you will rightly recognise this as a necessity – but the immediate resource to carry out this work may not be present.

We can help; our experience carrying out an increasing number of these kinds of reviews stands us in good stead. .

For a start, any such review will have to be broader than the traditional “constitutional” review. This will be more than a tidy up and a check to make sure the law is up to date. It will have to look at governance in the round, asking questions like:

  • Who made decisions, and on what, during the pandemic?
  • What use did we make of emergency powers – either in the constitution or in statute?
  • How did we balance the need for swift decision-making with the need for transparency and accountability?
  • How did we manage and balance member and officer roles?

These questions are as much about behaviour as they are about the black-letter detail of the constitution itself.

We’ve been providing constitutional and governance reviews for councils for a little while now. We’re now expanding this offer because we recognise that more councils are likely to need support here and that we are in a good position to provide it.  

We’re keen to support councils to grasp this challenge as the crisis of the pandemic begins to recede, and would like to hear from those of you who might be considering governance reviews of some kind in the coming months.

You can find out more about our overall support offer by downloading the flyer at the bottom of this page.   

About the Author: Ed Hammond

Ed leads CfPS's work on devolution, transformation and on support to councils and other public bodies on governance and accountability.