We think they are a good thing on balance, because they provide a forum for system-wide working and, at a time where organisations have conflicting or competing priorities, it is clearly important that we all keep talking to each other. Our concern, however, is that a lack of understanding about how these committees work could lead to decisions that are susceptible to challenge – and that could delay or even scupper otherwise entirely sound projects.
The committee in common is a confusing and surreal concept
It looks like a committee. If you are at a meeting, it feels like a committee. If it had a smell, it would probably smell like a committee. But it’s not a committee. Instead, it is two or more organisations meeting in the same place at the same time. They will talk about the same things. They may reach the same conclusions. But under the umbrella term committee in common, the individual organisations remain distinct and (if the committee is decision-making) take their own decisions.
Fundamentally, there are two types of committee in common, the advisory committee and the decision-making committee and it is really important to be clear to which of these categories your committee in common belongs.
An advisory committee makes recommendations or gives advice to the member organisations, who then decide what to do. This type of committee may be constituted by the boards of the member organisations, but its membership is entirely flexible because while it is important that its purpose is clear, the committee does not need to fit into the governance structure of its member organisations. What it does, and who sits on it, really is up to you, because there are no legal requirements for discussion groups, however formally or informally they might be constituted.
The second type of committee takes decisions for the member organisations. Into this category fall all committees that take decisions, which obviously includes committees that take irreversible decisions, but also includes committees that take decisions that can be overturned by the member organisations and committees whose decisions have to be “ratified” by the member organisations. Language is important here and a decision (whether it can be overturned, or is subject to delegated limits, or must be ratified) is still a decision.
Given our comment earlier about the complete flexibility in how you structure your advisory committees, the remainder of this article is only strictly relevant to decision-making committees. Although, if you want a gold star for governance, you could apply them to your advisory committees too.
In a decision-making committee in common, each organisation’s decision is taken by its own representatives. The appointment of the organisation’s representatives - and the way in which the representatives take decisions - must comply with that organisation’s internal governance structure and the terms on which they have delegated authority to those who represent them at the committee’s meetings.
The rules about delegation are different for different types of organisation
For NHS Trusts, under the usual NHS Trust Standing Orders, the Board of the Trust can delegate its authority to a committee, to an executive director or an employee of the Trust.
For Foundation Trusts, the board can delegate its authority to a committee of directors or an individual executive director (not an employee who is not, in strict terms, a director of the FT).
Clinical Commissioning Groups (it is the CCG not the Governing Body that holds the card here) can delegate its authority to a member of the CCG (a member GP), to the Governing Body, to a committee of the CCG or to an employee of the CCG. However, CCG constitutions are quite prescriptive and cannot be changed without the approval of NHS England.
Local authorities have different rules again. Under the rules of my local council, 101 elected members delegate authority to ten elected members who make up the “cabinet”. Below that are many employees, the most senior of which have been awarded the title “Corporate Director” - but, despite the title, they have no authority to bind the council. This is why council employees have to refer decisions to “cabinet” all the time. These are hard and fast rules and must be respected.
Taking an earlier example, an FT could not change its constitution to allow decision-making to be delegated to a non-executive director or an employee (including a “non-voting director”), because the NHS Act does not allow that.
The point here, is that within a committee in common, each organisation takes its own decisions. This means, for example, that if you are an NHS Trust or an NHS Foundation Trust, your representative at a decision-making committee in common cannot be the Chairman or a(nother) non-executive director, although a duly constituted and authorised committee of the Trust consisting entirely of Non-Executive Directors could take the decision.
This has a number of practical consequences:
- You need to check that your delegate actually has the authority to take the decisions you need them to take.
- Quoracy needs to be looked at on an individual organisational level. It is meaningless to suggest that a committee in common is quorate and able to take decisions for all of the organisations if one or more of the organisations is not represented at the required level or is not itself quorate (for example, if the organisation has decided to delegate internally to a committee rather than an individual). Put simply, if an organisation is not represented at the required level or at all, it is not possible for others to take a decision for that organisation.
- It means provision for substitutes needs to happen at authorisation level, as well as at committee level. You need it in both places. You need your committee in common terms of reference to say that organisations can send substitutes, but you also need the donor organisation’s internal delegation to make provision for that – otherwise it doesn’t work.
- An organisation cannot be outvoted on a committee in common. Each represented organisation takes its decisions, separately – so essentially you are looking at unanimity or nothing.
- If an organisation’s delegate abstains then that organisation has not taken any decision at all.
- Responsibility for the decisions taken by each organisation lies with its delegates. This suggests that organisations should choose their delegates with care.
The consequences of getting it wrong can be serious, including legal challenge to decisions. But there can be internal issues too. For example, an organisation may take its decision in the mistaken belief that other organisations have bound themselves to the same decision. This is why it is important to understand not only your own delegation, but also the delegation of the other organisations on your committee in common. To add to the difficulty, you can’t really justify your actions by a decision that hasn’t been taken – it taints the whole course of conduct. As if that was not enough, the work of committees in common is often quite public and potentially contentious.
Your regulators are unlikely to be impressed in a climate where “good governance” is a proxy for “well-led”. If you are bidding for devolution for example, or trying to persuade head office to release further funds for your STP, the last thing you want is something casting doubt on your organisational abilities. As Newsnight* front man Evan Davis might say: In the right hands, committees in common are a really useful tool. In the wrong hands, not so much.
If you would like any information on this or any other governance topic, please contact Tim Winn.
*(other news and current affairs programmes are available)