Code of Practice for Scrutiny Panels and the Public Accounts Committee

STATES OF JERSEY

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CODE OF PRACTICE FOR SCRUTINY PANELS AND THE PUBLIC ACCOUNTS COMMITTEE

Lodged au Greffe on 5th June 2007 by the Chairmen's Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to a p prove the Code of Practice for Scrutiny Panels and the Public Accounts Committee (PAC) set out in

the Appendix to the report of the Chairmen's Committee dated 5th June 2007.

CHAIRMEN'S COMMITTEE

CHAIRMEN'S COMMITTEE REPORT

The Standing Orders of the States of Jersey set out the terms of reference of the Chairmen's Committee, the Scrutiny Panels and the Public Accounts Committee; however, the Standing Orders do not contain detailed rules concerning the operation of the aforementioned bodies. In fact, it was intended that such matters would be addressed by the formulation of a suitable code of practice. To that end, Standing Order 141 creates a requirement for scrutiny panels, sub-panels and any member of a scrutiny panel appointed to undertake any review to comply with any code of practice prepared by the Chairmen's Committee and approved by the States.

In its report entitled, Evaluation of the Shadow Scrutiny Process' (S.R.7/2005 refers), the Chairmen's Committee as previously constituted undertook to present to all States members a draft Code of Practice. A number of protocols were developed during the Shadow Scrutiny Process which have formed the basis of the draft Code of Practice in accordance with Standing Orders.

The Chairmen's Committee had considered it vital that a code of practice was put in place as soon as possible so as to ensure that the Chairmen's Committee, the Scrutiny Panels and the Public Accounts Committee (PAC) were functioning in accordance with the Code at the earliest possible stage of ministerial government.

Unfortunately it has not been possible to introduce the Code of Practice as early as the Chairmen would have liked, due to the difficulties arising in reaching a consensus with the Council of Ministers and the Law Officers' Department in respect of Scrutiny's access to legal advice.

This access to legal advice covers 2 distinct areas: first, a Scrutiny Panel's access to advice for its own benefit in pursuit of scrutiny business, and secondly, access to legal advice that has previously been given to the executive, and upon which advice a particular policy direction or decision was taken.

The Chairmen's Committee does not consider that any further delay in the establishment of a Code of Practice is acceptable, and has decided to lodge its draft Code of Practice "au Greffe", with the inclusion of provisions relating to access to legal advice that it considers are appropriate.

An effective code must clarify a number of operational matters including, but not exclusive to, the following –

1. th e rôle of the Chairmen'sCommittee;
2. th e relationship betweentheChairmen'sCommittee,the 4 Scrutiny Panels and the PAC;
3. th e responsibilities of Panels and Chairmen;
4. th e use of sub-panels and rapporteurs;
5. th e managementof declarations of interest;
6. th e employment of advisers;
7. w o rk programming and  evidence gathering;
8. ac c ess to legal advice;
9. t h e organisation of public hearings;
10. t h e production of reports;
11. th e use of manpower resources; and
12. t h e rôle of the PublicAccountsCommittee.

This Code of Practice was originally lodged on 15th August 2006, but because of continuing difficulties in reaching agreement with relevant parties on the legal advice issue, it was withdrawn. Despite extensive negotiations it has not been possible to resolve the legal advice issue to the satisfaction of all parties. The Committee therefore considers it appropriate to bring the matter to the Assembly for resolution.

There are no financial or manpower implications arising from this proposition.

5th June 2007

APPENDIX

CONTENTS

Page

1. Introduction............................................................................... 6
2. Chairmen's Committee.............................................................. 6
3. PowersofPAC and Panels........................................................ 7
4. Scrutiny Panels: remitand membership....................................... 8
5. Scrutiny Panels: ExpertWitnesses and Advisers.......................... 11
6. Scrutiny Panels: Meetings.......................................................... 12
7. Scrutiny Panels: Planning the Forward Work Programme............. 13
8. Scrutiny Panels: Planning a review.............................................. 15
9. Scrutiny Panels: Gathering evidence............................................ 16
10. Scrutiny Panels: Public hearings.................................................. 20
11. Scrutiny Panels: Reports............................................................ 22
12. Scrutiny Panels: Resources........................................................ 24
13. Public Accounts Committee....................................................... 24
14. Appendix 1 – Access to Councilof Ministers Part B background 28 reports: ConfidentialityAgreement .............................................

15. Appendix 2 – The Roles of Scrutiny Panels vsthePublicAccounts 29 Committee

16. Appendix 3 – Standing Orders relating to PACand Scrutiny Panels 31
17. Appendix 4 – Standing Orders relating to Codeof Practice.......... 32

Chairmen's Committee

Draft Code of Practice for Scrutiny Panels and PAC

1. I n t roduction

1. T h e Scrutiny Panelsand the Public Accounts Committee (PAC) have been established bythe States asan integral part of the reformstothemachineryofgovernmentinJersey.
2. S c rutiny Panels exist to hold the Executiveto account for its policiesand actions and to undertake reviews into any matters of public importance. The role of the PACistoconsider the use of public funds and the adequacyofcorporategovernance arrangements.
3. T h e Chairmen'sCommittee,inaccordance with Standing Order143(f) and (g), [Appendix 3(1)] has prepared this codeof practice for the proceedings of the PACand Scrutiny Panelsfor approval by the States. Standing Orders 134(6) [Appendix 3(2)] and 141 [Appendix 3(3)] require the PAC, Scrutiny Panels, a Sub-Panelof a Scrutiny Panelandanymemberof a Scrutiny Paneltocomply with this Code.
4. I t is recognised that theCode will need to be regularly updatedandamendedinthe light of further experience to ensure that the Scrutiny function operates efficiently and effectively.
5. T h e Chairmen's Committee, in consultation with the Executive and the Privileges and Procedures Committee (PPC), will keep the CodeofPracticeunder review toensure that it meets the needsof the Panels, witnesses and the public.

2. C  h airmen'sCommittee

1. T h e Chairmen's Committee iscomprisedof six ex officio members, that is: the Chairmanof the five Scrutiny Panels and the Chairmanof the PAC.Two additional members are appointed by the States on the nomination of the Presidentof the Chairmen'sCommittee (Note: alternative nominations mayalsobe considered by the States).
2. T h e Presidentof the Chairmen's Committee is appointed by the States in the manner prescribed in Standing Order121[Appendix 3(4)].
3. T h e Chairmen's Committee has responsibility for oversight, co-ordination and review of the work of the PACand the Scrutiny Panels. The full termsof reference of the Committee are set out in Standing Order 143 [Appendix 3(5)].
4. T h e Chairmen's Committee is a co-ordinating body, ensuring that resources are allocated fairly between the PACand the various Panels andthere is no unintentional overlap or gaps in the programmeof scrutiny over a periodoftime.
5. T h e Chairmen'sCommittee, in liaison with individual Chairmen,will try toensure that allnon-Executive members of the States who wish to participate in the Scrutiny function are involved in the work of the Panels orSub-Panels.
6. T h e Committee will ensure that the work programme chosen by the PAC and the Panels can be undertaken within the financial andmanpowerresources available. TheCommittee,however,doesnot have any sort of veto' over theprogrammesdrawn up by the PAC and the Panels.
7. A t anearly stage each year theChairmen'sCommittee will receive from thePACandeachPanel details of their provisional future workprogramme for the year.Thesewillbeforwarded to the Executive for information. The work programmes will be updated throughout the year. In addition, project outlines and plans for individual reviews will be forwarded by the Panels to the Chairmen's Committee for endorsement.

8. T  heChairmen'sCommittee will consider the overall strategic priorities of the Executive. It mayrefer potential topics for review totherelevantPanel for consideration.
   9. T h e Chairmen's Committee has an important role in maintaining close contact with the Council of Ministers to ensure that there is goodtwo-waycommunicationbetween the Scrutiny functionand the Executive on their respective workprogrammes.
   10. T heChairmen's Committee will invite the Chief Minister to meet it onatleast a twiceyearlybasisin order to discuss the respective workprogrammesof the Executive and the Scrutiny function.

3. P o w ers of PACandPanels

1. S c rutiny Panels andthePAC have thepowertoissuesummons in accordance with the States of Jersey (Powers, Privileges and Immunities) (Jersey) Regulations 2006. In accordance with the statutory requirement Panels will nevertheless take all possible steps to obtain voluntary compliance before using the powerscontainedin the Regulations.
2. M e mbers of the States are not coveredby the Regulationsas they arerequiredtoco-operate with Panels by the CodeofConduct.Panelswill nevertheless use the proceduressetoutbelow, that mirror those set out in the Regulations,whenseekingevidence from Ministers, Assistant Ministers and otherMembersof the States.
   3. E v eryeffort will be made to obtain voluntary cooperation from Ministersand other Memberstoprovide the documentaryevidencerequiredby the Panelandto attend hearings to give oral evidence.If a Member refuses to co-operatewhenrequested, a formal letter from the Chairman of the Panel will be sent setting out the evidencerequired and, if appropriate, the proposed date and time of the hearing.
3. In common with members of the public who are able tochallenge a summons,Membersof the States will be able to write totheGreffierasking for a review of the request to provide evidenceif they consider –

(a ) th a t the Panel has not taken adequate steps to seek voluntary cooperation from the Member or to

deal with evidence confidentially if appropriate;

(b ) th a t the evidence is, or the documents are, not relevant or necessary to the matter that the Panel is

investigating;

(c ) th a t the evidence is, or documents are, legally privileged;

(d ) th a t the prejudice to the Member that would ensue from appearing before the Panel and giving the

evidence and, where required, producing the documents, so far outweighs the usefulness of the evidence or documents to the Panel that it would be unreasonable to require the Member to appear.

5. T h e Greffier will immediately refer the matterto the Privileges and Procedures Committee which will review the matter and direct whether or not the Minister orMemberconcerned should comply with the request. If a Member fails to complywhen directed byPPCtodosoheorshe will beregardedasbeingin breach of the CodeofConductand the appropriate disciplinary process willbe initiated.

4. S c r utiny Panels – remitandmembership Terms of reference

1. T h e formaltermsof reference for the Scrutiny Panels are setout in Standing Order136[Appendix 3(6)]. The Panels will prepareanannual report describing how they met these termsofreferencein their work programme for the year.

Remit

2. S tandingOrders stipulate the establishment of five Scrutiny Panelseachundertakingresponsibilityfor scrutinising broadtopicareasdesigned to cover the full rangeof ministerial departments.The five Panels and the departments to which they are related are –

Panel Ministry

Corporate Services Chief Minister

Treasury and Resources Economic Affairs Economic Development Education and Home Affairs Education, Sport and Culture

Home Affairs

Health, Social Security and Housing Health and Social Services

Housing

Social Security

Environment Planning and Environment

Transport and Technical Services

3. In general,eachPanel has the freedom to select its ownprogrammeof reviews within its remit. Each Panel has the responsibilityofensuring that a fair measureof scrutiny is undertaken across the full range of ministerial departments within its remit during the courseofthelifetimeof the Panel.
4. T h e Panels mayconsider matters which are referred to them by the States, theExecutive,theChairmen's Committee, individual States members, interest groups or the general public but they are under no obligation toundertake reviews which are referred to them by any ofthese bodies.

Chairman

5. T h e ChairmanofeachPanelisappointedbytheStatesinthemannersetoutin Standing Order120 [Appendix 3(7)]. The term of office for eachChairmanis for thedurationofthe States Assembly until the beginning ofthefirst States meeting followingthenextordinary election.
6. T h e responsibilities oftheChairman are as follows –

• t o d evelop and provide strong and fair leadership and clear guidance to members and Officers involved in the Scrutiny function;

• t o d e velop clear understanding of the terms of reference of the Panel and the scope and range of the scrutiny functions;

• to e nsure  that  the  Panels  are  effective  in  developing  a  process  that  will  contribute  to  the achievement of the States' strategic aims and  priorities and the continuous improvement in services and implementation of best practice;

• t o a gree all agendas for the Panel's meetings and take a lead in developing a forward work programme and ensuring that it is adhered to within the resources available;

• t o m eet on a regular basis and consult with the other Panel Chairmen and the Chairman of the Public Accounts Committee through the Chairmen's Committee;

• t o e n sure that the appropriate members of the Executive are briefed about the work of the Panel;

• t o h a ve overall responsibility for liaison with Ministers and Chief Officers responsible for services within the Panel's programme;

• t o u ndertake on behalf of the Panel all contact with the media including press releases and interviews.

• t o e n sure that requests for information are fair and reasonable;

• t o s e ek to involve all Scrutiny members in the work of the Panel;

• t o d e cide, in consultation with Scrutiny Officers, which witnesses to invite to hearings;

• t o c h air Scrutiny hearings in public, ensuring fairness to witnesses;

• t o d e velop a clear brief for each piece of work;

• t o c onduct an evaluation of each review to assess the effectiveness of the process and identify problems.

7. T h e Chairman maydelegatecertain functions, for example,chairing a public hearing or contacting the media, to another memberof the Panel.

Membership

8. E a chPanelconsistsof the Chairman and up to four elected States memberswho are appointedto the Panelby the States in the mannersetoutinStandingOrder125[Appendix 3(8)].
9. E a chPanelselects a Vice-Chairman to fulfil thefunctionsof the chairman in his/her absence.
10. T hequorumforeachPanelisone half of its membership,roundeduptothenext whole number.
11. W  ithout a quorum, a Panelmaynotmakesubstantial decisions at a meeting on its workprogramme, the terms of reference of specific reviews or a reportfollowing a review. A public or private hearing also requires a quorumofmembers.
12. In practice Panelsmakemostoftheirdecisions by consensuswithout the need to vote.Where a vote is necessary, eachmemberof the Panelhas one vote.ThePanelChairman does not have a deciding vote in the eventof a tied vote. It is notpossibleto proceed with a decisionon a tied vote.

Sub-Panels

13. U nder Standing Order139[Appendix3(9)], the Panels are entitled to setupsub-Panels to deal with particular issues, such asdraft legislation, ortoundertake a review which cuts across the responsibility of more than one Panel.
14. S ub-Panelsmay contain electedmemberswho are notmembersof the Panel in question(provided that they are notMinistersor Assistant Ministers).
15. S ub-Panels operate on behalf of the Panelwhichhas appointed them and only with the authorisation of that Panel.The appointment, remitand timescale mustbe agreed bythe full Paneland recorded in the Minutes. TheSub-Panel will appoint its own Chairman and it is the responsibility of the Sub-Panel Chairman to report to the full Panelon a regular basis. Thequorum for a Sub-Panelis one half of its members, rounded up to the next whole number. The reportpreparedby the Sub-Panelon its review will be presented totheStatesinthenameof the full Panel.
16. S ub-Panelsmaycallupon the financial andmanpower resources available to the Panel. This is subject to the othercommitments of the Paneland to the agreement of the Chairmen'sCommittee.

Rapporteurs

17. U nder Standing Order 140 [Appendix 3(10)], the Panels are also entitled toappoint a single member, or rapporteur, todeal with a specific issue within the Panel'sremit.
18. R apporteurs operate on behalf of the Panel, on the same basis as a Sub-Panel, as set out above. Rapporteurs will progress their investigations ontheirown initiative and direction, but ultimately report back to the Panel. Rapporteursshould liaise with the Chairman on a regular basis.

Declaration of interests

19. A member of the Panel must declare an interest and withdraw from part or all of a review being conducted by the Panel if he/she considers that this interest wouldprejudice,orappear to prejudice, his or her ability to participate in the Panelproceedingsinan impartial manner.
20. It isinappropriate for a Panelmemberwhorepresents,or is a memberof, a particular interest, stakeholder groupor other organisation to participate in a review of a topic directly relatedto that group.Themember may, however, give evidence to the Panel as a witness,havingwithdrawn from the Panel for theduration of the particular review.
21. Q uestionsabout a potential conflictof interest onthe part of a memberof a Panelshouldbe referred in the first instance to the Chairmen's Committee for consideration who will refer the matter to the Privileges andProcedures Committee if a satisfactory resolution cannotbeachieved.
22. If a witnessbelieves that he/she has a potential conflict of interest, this fact should be madeknown to the Panelat the earliest opportunity.
23. I n the final analysis, the Panel will determine whether the witness should appear before it to give evidence, having taken into account the reasonsgivenby the witness.
24. I f thePaneldecides that itwishes to proceed with takingevidence from the witness, it will make a statement in its finalreportnoting that a declarationofpotentialconflict of interest had been madeby the witness.

5. S c r utiny Panels: ExpertWitnessesandAdvisers

1. T h e Panelsmayconsidertheappointment of expertwitnesses and advisersto assist them intheir work and offertechnicalsupport.ThePanels have a specific budget allocation for this purpose,overseen by the Chairmen'sCommittee.
2. P a nels appoint advisers to assist them in studying Executive policies. Panels have the freedom to select advisers whom they considertohaveanappropriatelevelof expertise.
3. A d visers are normally appointed for a specific issue and for a specificperiodoftime. They alwaysreport to a specificPanel. A Panelmaywishto appoint a single adviser or a numberof advisers, if it requires a range ofexpertiseoropinion and has the budgetto do so.
4. A d visers maybe used for a rangeoftasks including technical assessmentof evidence, advising on the selection and questioning of witnessesandprovidingbriefing papers for the Panel. Advisers generally attend oral evidence sessions, and may ask questions regarding technical matters ofwitnessesappearing before thePanelwho are not States members.An adviser may also be invited in a hearing toactasan expert witness.
5. In selecting an adviser, the Panelsmust adhere to FinancialDirectionNo. 5.1 on the engagement and use of consultants.

6. T h e first stage in appointing anadviser is for the Paneltoagree, in principle, that it wishes to appointan adviser, to define the specification of the task to be undertaken, to prepare a project brief and toestimate a budget for the appointment. The selection of an adviser mustbeagreedbythe Panel. In most cases, the Panels willconsidermore than onecandidate.The authorisation of the Chairmen's Committee for this expenditure should be sought at this point.
   7. T h e Panelsmaysearch for suitable advisers from a variety ofsources.Theymay, for example,approach accredited bodies or professional organisations, consult States departments for lists of professional advisers or take advice from local interest groups.The Scrutiny Office will endeavour to develop a register of potential localadvisers to support the Panels.
   8. It is impossible to be prescriptive about the levels ofremunerationforadvisers.Muchdependsonthe individual, theirprofessionalbackground and theircharging structure.

6. S c r utiny Panels: Meetings Scheduling of meetings

1. T h e Panels will agree for eachcalendaryear a scheduleof regular meetings which will be held to plan and considertheprogressof enquiries being undertaken bythePanel.When this schedulehasbeen agreed, it willbepublishedonthe Scrutiny website.
2. P a nel meetings will commonly be held in the rooms which have been designated for Scrutiny (Le Capelain and Blampied). However, a Panelmaymeetatany location of its choice.
3. T h e Panels will publish an agendaatleast four working days inadvanceofeachscheduledmeeting.The Agenda will be available onthe Scrutiny website and in the States Bookshop.The Scrutiny Officers will work with the Chairman indraftingtheagenda.
4. T h e agenda papers will normally be sent to Panelmembers in hard copy.Agenda Papers which are related to matters tobediscussedin private (see paragraph  6.7 below), however, will notbe published.
5. M i nutesofeach meeting will bepublished electronically andin hard copy as soon aspossible after each meeting. The Minutes will be signed bythe Chairman oncethePanel has agreed that they represent a true record of the proceedings.

Public and private meetings

6. S t andingOrder138(6)[Appendix 3(11)] provides that the public may observe a Panelmeeting,or a hearing, unlessthePanel decides otherwise. A States memberwhoisnot a memberof a Panelmay observe any of its meetings or hearings, provided that the Panel is notin private session.
7. T h e Panelmay decide to take allor part of a meeting in private. The agenda will normally indicate in advance ofthemeetingthoseitemswhich will betaken in private session.ThePanelmay,however, decide in the course of a meeting that itshould continue in private session.
8. It isnotpossible to give a complete list of reasons why a Panelmightconsideritappropriatetomeetin private. Thedecisionremainsat the discretion of the Panel. Among the reasons why a Panel might consider it appropriatetomeetin private are –

• D  is c ussion of the merits of potential advisers

• D  is c ussion of questions to be put to witnesses

• D  is c ussion of draft Panel reports.

9. S t atesmembers and membersofthepublicwhoare admitted to a Panel meeting or hearing will be expected tocomply with theconditions of behaviourdetermined by theChairman.Their attendance will be onthebasisofanobserver.No intervention into the meetingor hearing will be permitted, except with the expresspermission of the Chairman.
10. T he Chairman may request that any memberof the public who does notobservetheseconditionsbe removed from the meeting room and excluded from theremainder of that meeting orhearing.In the event that a memberof the public refuses to leave the meeting, the Chairmanmayclose the meeting.

7. S c r utiny Panels: Planning theForwardWorkProgramme

1. A t the startofeach year thePanels will consider their forward workprogramme.This will include agreeing the topics they want to address,how they will be prioritised and timetabled, any research they wish to commission and what approach will best deliver their objectives when carrying out their enquiries.
2. A s part of this initial planning, the Panels will invite Ministers relevant to theirremitto discuss the business plan and forward priorities of their Departments. Good communicationat this stageshould enable Scrutiny to develop a work programmewhich will co-ordinate appropriately with the Executive's legislative and strategic businessplans.
3. T h e Panelsmayalso invite interest groups andstakeholders relevant to their remit to make presentations on possible future topicsforreview.
4. T h e Panels will also consider suggestions for reviews from otherStatesmembers and from membersof the public. Proposal forms are available from the Scrutiny Officefor this purpose. Scrutiny Officers will advise anyonewishing to make a proposal on the current priorities of the Panel.
5. T h e Panels will take account of the Executive's Discussion Papers' and Draft PolicyPapers' in planning its workprogramme.These consultation papers should enablethePanels to have a clear view of the planning process for a major policy proposalorimportant new legislation andshould help the Panelsto determine the mostappropriate opportunity toconduct a review.
6. T h e Panels will seektobeco-operative in the planning process and will determinehow best to participate in public consultation. Once the Executivehascompleted its consultation, the Panels will not normally commence a separate investigation into a policy proposal unless thereisevidence that significant factors have beenignoredby the Executive.
7. C o mmunication is a two-way process and the Panels will seek to give good notice to the Executiveof their intention to scrutinise a policyindevelopmentso that the scrutiny process does not undulydelay the programme set out bytheExecutive in its businessplan.
8. In developing a balancedworkprogramme, the Panelswill take account asfaras possible of the four main roles ofscrutiny,namely –

• P o l ic y

• P r im  ary/subordinate legislation

• A  n n ual Business Plan/Budget

• M  a tt ers of public interest

9. In selecting topics forreview, the Panels will consider if they –

• a r e l inked to States strategic objectives;

• a r e a community/corporate priority area;

• a r e a key issue for the public;

• a r e l ikely to result in an improved service to the public;

• r e la t e to a service/issue where there is a high level of dissatisfaction.

10. T opics will be rejected if they –

• a r e a lready being addressed by others

• a r e s ub judice or prejudicial to States interests;

• f a ll w ithin a complaints procedure;

• a r e a n individual disciplinary/grievance matter;

• a r e u nlikely to result in an improved service.

11. M atters ofbest value, efficiency and effectiveness of policy implementation are properly the role of the Public Accounts Committee.
12. T hePanels,in accordance with Standing Order72[Appendix 3(12)], mayconsiderdraft legislation which has been referred to them by the States Assemblyafteragreementonthe principles of the draft legislation and beforethe second reading.The process of legislative scrutiny will operate more effectively if the Panels aregiven good advance notice by the relevant Departmentoftheir intentions with regard to the draft legislation.
13. P anels will not normally scrutinise individual decisionsmadeby a Minister or delegated totheirOfficers, particularly decisions in respect of development control, licensing, registration, consents and other permissions. In particular, Scrutiny should not be used asan alternative to normalappealsprocedures,nor must it become involved inwhat would amount to a disciplinary investigation against Officers.
14. O nce a Panelhasagreed its provisional work programme for the year it will communicatethe programme firstly to the Chairmen'sCommitteeforendorsementand then to the relevant Minister(s) for information. Finally, the workprogramme will be published on the website and sent to the media.
15. T hePanels will need to revisit their forward work programme on a regular basis in orderto take into account new developments in theExecutive's policies and matters of public importance.The Panels, for example, may request without prior notice, in accordance with Standing Order79[Appendix 3(13)], that a proposition being debated by the States Assembly should be suspended and referred to it for investigation. ThePanels will therefore needto retain a degreeof flexibility in their forward planning whichwill enable them to re-prioritise theirprogrammeofwork as new circumstances arise.

8. S c r utiny Panels: Planning a review

1. A d equate scoping ofeach individual review is an essential element in the overall effectiveness of the scrutiny process. Scoping will include some or all of the following: research undertaken by Panel members and/or Scrutiny Officers; consultation with theExecutiveandwith interested parties; discussion with expertwitnesses and advisers.
2. A t this stage the Panelsmayconsider it advisable to invite a briefing from the relevant Minister or department on the key issues to bereviewed in orderto clarify the current positionandthe strategic intentions oftheExecutive.
3. T h e outcomeof the initial scoping will be a definition of the objectives for the review; drafting ofterms of reference; an action plan specifying methodsofgatheringevidence;an estimation ofthetimescaleand costs of the review; and an allocation of Scrutiny Officers' time in support of the enquiry.
4. T h e Panels will confirm specific termsof reference foreach review before calling for evidence.The Panels will consult the relevant Minister on the termsofreferencebeforepublication as this mayavoid misunderstandings and help the scrutiny process to focus effectively on key issues. ThePanels,however, always retain discretion in setting their owntermsof reference.

5. A t the beginningof a review,thePanelswillwritetotherelevantMinister(s)formallyannouncing the terms of reference and clarifying the Panel's expectations regarding information and documentation required, written and oral submissions,and timescales.
6. T h e Panels will aim to give the Executivegood notice of the subject under review andallow a reasonable timescale forrequestsfor written submissions and attendance at public hearings. Co-operation will be enhanced if negotiations between the Panels andtheExecutivecommence at an earlystage.
7. T h e Panels will also publicly announce their review andtermsof reference onthe website and to the media.
8. T h e Panels will need to keep the stated termsof reference underreviewthroughout the scrutinyprocess to ensure that these adequately covertheir objectives taking into account any developmentswhichmayarise as a resultof consideration oftheevidence received.
   9. S c r utiny Panels: Gathering evidence

1. A large part of the Panels' workload will involve taking evidence and gatheringviews. Panels will gather evidence formally through written submissions and oral evidence sessions. They will consider documentation provided bytheExecutiveandmayconductfact-finding visits inorder to clarify technical and practical issues.
2. T h e Panels are freetoseekevidence from whoever they wishandmay request papers and records from private bodiesand individuals where these are relevant to thePanel'sremit.
3. W ithin the context of the Public Engagement Strategy, the Panels will need toconsiderhow best to engage stakeholders, the mediaandthe general publicinthe issues underreview.Theymaychoose innovative and imaginative information-gathering activities. Forexample, rather than planning a series of meetings, the Panels might hold a seminar or workshop forstakeholders or make a visitto people and places of relevance to the subjectsunder review.
4. P a nel members involved in fact-finding visits and other information-gathering activities will be accompanied by a Scrutiny Officer who will prepare a note ofthe findings tobe included as part of the published evidence for thereview.

Requests for information

5. T h e States have conferredpowerson the Panels to callfor any persons, papers or records relevant to the subject of a review andto require anypersonto attend before them, providing that the correct procedures are observed. (See Section  3 above.) Elected members are required under the CodeofConduct set outin Schedule 3 of Standing Orders to co-operate when requested to appear and give evidence before or produce documents to a Scrutiny Panel. In the vast majorityofcases, the Panelsexpect that requests for information will bemet on the basisofco-operation and negotiationrather than compulsion.
6. T h e prime responsibility for providing information to the Panels onExecutive policies rests with the relevant Minister. Requests for information regarding a review andinvitationstoappearbeforePanelsas witnesses will beaddressed initially tothe Minister by the PanelChairmanandPanelswill not use their statutory powers to summons officers in Departmentswhen a request should moreproperlybemadeto the Minister.
7. S c rutiny Officers will makerequests for specific information thereafter in writing either directly to the Chief Officer or to his/her nomineeas Scrutiny Liaison Officer.
8. In f ormation provided to Panels by the Executive will normally be in the form of a written submission, replies to Panels' questions in writing and oral evidence from Ministers and officials. ThePanelsmay

request all documents relevant to its review, including internal files, advice or working papers.

9. P a nels may press for information not readily provided which they feel is necessary to their enquiry. In this case, a formal request would bemade to the Minister.
10. P anelmembers will not questiondepartmental officers directly other than as witnesses at a properly convened hearing or in the courseof a formally arranged fact-findingvisit to the department. The Panels may, however, make requests for information to departmental officers, through the Scrutiny Office, during the course ofthereview.

Written Submissions

11. R equests for written submissions from theExecutive will normallybemade in advance of the start of oral evidence sessions. However, questions may arise during the courseof oral evidencewhich require a formal response from the Executive.
12. It is expected that written submissions from the Executive will be basedontheformal request from the Panel. However, it is beneficial to the overall process for theExecutive to provide any additional relevant information, whether or not this is specifically requested, to ensure that all aspects of the topic are comprehensively covered.
13. I n undertaking an enquiry, it is likely that Panels will wish to invite commentand information from potential interested parties.For this purpose, the Panels will makean open call for evidencethrough various means,whichmay include the website,pressreleases, media coverage and formal notification in the press. In addition, the Panels maymake a direct requestfor information andcommentto individual organisations.
14. T he Scrutiny Officersareresponsible for the receipt and collation of all written evidence. If the Chairman or Panel members receive evidence directly they should pass it to the Scrutiny Officers in the first instance.

Treatment of personal or confidential information

15. T he Panels are committed to the principle of open accessto information withappropriate data protection. In principle, all written evidencereceivedby the Panel will bepublishedon the website.However,where the Executiveoranyother witness considers that the information to be provided is of a sensitiveor private nature, a request should be submittedto the PanelChairman,inadvance,for the information to be treated inconfidence. In addition, the Panelmaydecide itself that certain information shouldbe treated in confidence.
16. A nydisagreement on the part of a witness as to the Panel'sintendedor actual treatmentof information should be referred in the first instance to the Chairmen'sCommitteeand thereafter to the Privileges and Procedures Committee if a resolution isnotfound.

Access to Council of Ministers Part B background reports

17. T heCouncil of Ministers will provide a copyofthelist of B Agenda items to the Scrutiny Manager before the meetingof the Council.
18. The Scrutiny Manager will circulate this list to all membersof the Chairmen'sCommittee, all scrutiny membersand to Scrutiny Officers.
19. T helistof Part B agendaitems will notbe circulated or discussed with anyone other than membersof the Chairmen'sCommittee,the Scrutiny Panels, orthe Scrutiny Office.
20. A nyPanel Chairman may request a copy of a Part B report from a Minister whose department falls within

the Panel's terms of reference. There is a presumption that material will be released to the Panel Chairman, and if

appropriate, will be provided in accordance with a signed confidentiality agreement (see Appendix 1). If there are exceptional circumstances surrounding the release of information, those circumstances will be explained to the relevant Panel Chairman by the Minister. All Part B reports will be treated as confidential until the Minister specifies otherwise, or until the report is made public.

21. P art B reports from CouncilofMinisters meetings will be promptly forwardedfollowingconsiderationby the Council and the relevantMinister.
22. In the event that another Scrutiny Panel wishes to be provided with a copy of the same Part  B report, as referred to in paragraph 9.20 above, the Chairman of that Panel will need to submit a request to the relevant Minister.There will be a presumption that the Minister will release the paperandif appropriate in accordance with the confidentiality agreementreferred to in paragraph  9.20above.IftheMinisteris in doubt ofthe relevance of the request,he/she will take this up with the PanelChairman.Anyexceptional circumstances whichmight surround the release of information will beexplainedtothePanel Chairman whorequested the information.
23. In theeventof a disagreementabout access to a Part B report, the matter will be referred to the Chief Minister andthe President, Chairmen'sCommitteefordiscussion.
24. A Scrutiny Panel Chairman will begiven access to the relevantbackground papers. Legal advice
25. T hefunction of Scrutiny Panels is toholdtheExecutive to accountfor its policies and actions and to undertake reviews into matters of public importance. In carrying out this function, thePanelsmay need to seeklegaladvice.
26. T heLawOfficers will provide legal advice to both the Executiveand Scrutiny. As they are both branches of Government, they are nottobeconsideredasseparate clients in respect of the provision of legal advice from the Law Officers.
27. L egaladvice covers a broadspectrum, ranging from matters whichmaybeanswered with certainty to matters of opinion, whereadvice is givenaccordinglytothe best understandingof all relevantfactors. Ultimately, legal advice maybe tested only in a courtof law. It is recognised that neither the States Assembly nor a Scrutiny Panelis a competent forum in which to decidethemeritsofcompetinglegal advice.
28. T hePanel'sinterest in the legal position isfocussedon the wayithas helped in the formulation of the decisions taken andthepoliciesdevelopedby the Executive.
29. T heChairmen'sCommitteeproposesthefollowing protocol on the provision oflegaladvice –

1 .  T h e Law Officers will provide legal advice to both the Executive and Scrutiny. When a Minister

presents a policy proposal it will specify whether legal advice has been received, and if so, contain a statement of the legal position. The legal advice itself will remain confidential.

2 .  W  h en a policy is under consideration by a Scrutiny Panel, the Panel may decide to scrutinise the

legal position. The Panel may ask the Executive for the legal advice received by the Executive.

3 .  L e g al advice received by the Scrutiny Panel (and its members individually) in these circumstances

will be treated with the same level of confidentiality which has been accorded to the advice by the Executive.

4 .  T h e Scrutiny Panel's report will comment on any legal issues which arise in the course of scrutiny,

but will not breach the confidentiality of the Law Officers' legal advice.

5 .  I f legal issues arise during a scrutiny review the Executive will be informed and allowed the

opportunity to respond.

6 .  I n circumstances where a dispute arises between the Executive and a Scrutiny Panel regarding a

request by a Panel to have access to the legal advice on which a policy or decision has been based, the Panel will convene a joint meeting, which will include the Executive, the Law Officers and the President of the Chairmen's Committee, to consider the issues. This meeting will necessarily be held in private.

7 .  T h e provision of legal advice to a Scrutiny Panel must take reasonable account of the timetable in

which a review is being conducted. In some cases, for example, where pressure of workload on the Law Officers Department prevents a prompt response to a request for legal advice on behalf of a Scrutiny Panel, a Scrutiny Panel may seek legal advice from an external source rather than directly from the Law Officers.

8 .  I t is expected that sharing legal advice and relying upon the Law Officers for consistent advice will

minimise the increased demands for legal advice. If there is a need for increased legal resources from an external legal adviser the Scrutiny Panel will utilise its budget to provide appropriate funds and if this is not sufficient the issue will be discussed with the Council of Ministers.

10. S c rutiny Panels: Publichearings

1. W itnesses have a key role to play in helping Scrutiny Panels to fulfil the objectives of their Review, whether this is as the Minister and his or her SeniorOfficersin clarifying and responding to questions on Executive policies and decisions, or as interested parties voicing and highlighting areas of public concerns.
2. T hePanels will decide who they wish to invite aswitnessesin the lightof written evidencesubmitted to them.Witnessesmayinclude individuals or organisations that havesubmitted written evidence,butdoes not have to be limited to those. Noorganisationor individual hastheautomaticrightto give evidence – it is for the Paneltodecidewho it wishes to invite butPanels will make every reasonable effort to consider all relevantevidence.
3. T hePanels will inform witnessesof the intendedbroadareasof questioning but will not supply full detailed questions to witnesses.
4. T he primary purpose of oral evidence sessions is to put questions to witnesses in order to elicit information and views which the Panel will subsequently consider in preparing its report. It is the responsibility of the Chairmantoensure that members keep their questioning constructive, shortandto the point. He/she shouldnot allow the evidence session to develop into a Paneldebateon the matterunder investigation.
5. T he Panels do not, in principle, remunerate witnesses for the evidence they give at oral hearings.Panels may, however,considerattheir discretion reasonable claims for expenses.

Treatment of witnesses

6. M inisters are accountable to the States for their policiesand the actions of their officials in pursuit of these policiesand it ison this basis that the Minister generally appearsas the principal witness giving evidenceto a Panel.
7. T hedepartmental Chief Officer, or an officer designated by the ChiefOfficer,maybe invited by a Panel to appear individually, or asked for information, as part of the process of overseeing ministerial responsibility. They can onlyanswerquestions relating to the facts with regard to a policy matter and its implementation. The departmental Chief Officer will have the right to accompanyan officer when s/he

appears before a Panel.

8. It is the responsibilityof the Chairman to ensure that Panelmembers direct questionson policy matters to the Minister.
9. M inisters normally decidewhich official or officials shouldrepresent them, in consultation with their Chief Officers. Ministers, however, will normally take accountof requests by Panels to take evidence from a particular named official.

Organisation of hearings

10. The Panelswill arrange andpublish dates for oral evidenceto be givenatpublichearings, providing witnesses with reasonable notice of all the Panel'srequirements. The Panelswill inform the witnessesof the key areasof questioning it wishestofocuson at least five working days in advanceofthehearing. This isto enable witnesses to prepare themselvesfullyto address the objectives ofthePanel.
11. Evidence taken at public hearings will be recorded and, unless otherwise decided by the Panel, transcribed and publishedon the website. Meeting roomshave been set upfor this purpose in the States Building butthePanelsmaychoose to hold a hearing atan alternative venue.
12. PanelMembers will endeavour to put witnesses at their ease.Witnesses should notbe made tofeel as if they are under interrogation. Nor should the process be unduly confrontational, which would risk a defensive approach from witnesses rather than openness and co-operation.
13. Following the proceedings, witnesses will be provided with a draft copy ofthe transcription before its publication for correction of any inaccuracies in the text. Substantial revisions to the verbatim text will not be permitted at this stage. However, the Panelsmayaccept further clarification from the witness regarding points madeduring oral evidence.
14. The Panelsmay agree to take oral evidence in private session if the matters under consideration are of a sensitive, confidential or private nature.
15. Throughoutthe hearing phase, thePanels will needto keep the review objectives constantly in mind and assess the information gathered against these. TheChairman is responsibleforkeeping the Paneland the witnesses focussedon the task in hand.

11. S c rutiny Panels: Reports

1. O nce all theevidence, both written and oral, has been collected the Panel will meet toconsiderand analyse it. The Chairman will previously liaise with the Scrutiny Officers in preparing a draft Heads of Report' documentbased on anassessmentoftheevidence received.
2. P anelMembers will discusshowtheevidencegatheredhelps to meetthe objectives setfor the Review and will begin to formulate their findings and recommendations. It is the role of the Chairmantoensure that all membershavehad an opportunity to contribute their views.
3. T he Panels' discussion at this stage willgenerallybe held in private as this will allow a morefrank exchange and developmentofviewsand an opportunity to reflect on the evidencereceived. It is important that the Panel's preliminary viewsarenotbroadcast prematurely.
4. I t is important that both the findings and the recommendations of the review are drawn out of the evidenceandadequatelysupportedby it.
5. T he Scrutiny Officers will then prepare a draftreport for further consideration and approvalbythe Panel. The report should give a balanced view of all the mainevidence received, leading upto the findings and recommendationsofthePanel.

6. In order to ensure that theevidencereceivedis fairly and accurately reported,thePanel will circulate relevant draftsectionsof the report toall witnesses for commentinadvanceof finalising the report. Normally thesedraft sections will be factual ordescriptivepassages. If recommendations are provided this is done toprovidethecontextofthe report.
7. W itnesses will begiven a reasonable timescale (normally five workingdays) in which to commenton the relevant sectionsof the draft report. ThePanels will carefully considerthecommentsreceived from witnesses but retain discretion in determining anyamendments to the draft report.
8. T he Panels will aim toproduce a consensual report. Such reports carry more weight. However,where a diversity ofviewsexist this will bemadeclearinthereportinanappropriateway.

Approving and publishing Reports

9. O nce the Panels have finalised and approved their report it will be formally presentedto the States for information in a specific series of reports for Scrutiny. The report, together with its findings and recommendations,remainsconfidential to the Panel until it has been so presented.
10. Copies of the finalised report willbe released in advance to the appropriate Minister underembargo. This is to enable the Minister to prepare an informed comment in response to the report's findings and recommendations.The period ofadvance notice will be determinedby the Chairman.
11. The Panelsmayalso decide to releasean advance copy of the reportunderembargo to the media in order that they might prepareappropriate news coverage.
12. The Panelsmaydecideto arrange a media launch oftheir report at the time of publication. It is for the Chairman to decidethearrangements for making news releases ormedia briefings.
13. A copy of the report will be sent, on publication, toallwitnessesand the relevant Minister(s). Executive response
14. The Executive will determine the form of its responsestoPanelReports according to the nature and content of theReports.TheExecutive will normally provide a detailedresponse to the findings and recommendations of thePanelwithin six weeksofpublicationof the Report. Where the Executiveis only able to provide an interim report within this timescale, a full response will be expected to be provided shortly thereafter.
15. The responsibility for implementing any recommendations made by the Panels rests withtheExecutive who will decide on any appropriatecourseof action.
16. Where Panelmembers are dissatisfied with progressorthe actions takenby the Executive, the Panels may decide that further scrutinyshouldbeundertaken.ThePanelsmaydecide to lodge a proposition inorder to seek a States debatetopursue their concerns.

Monitoring the recommendations

17. The Panels may request, at an appropriate interval, a progress report from the Executive on the implementation ofrecommendationsmade in the report or on keydevelopmentsregardingthe policy or issue in question.
18. Contributors to the Review and relevant stakeholders and interest groups will be given appropriate feedback on the outcomeof the Review.