My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Tordoff) in the Chair.]
215: Before Clause 121, insert the following new Clause—
“Contractors’ duty to cooperate
(1) Where any private or voluntary organisation is funded by a local authority to provide a public service or function, that organisation shall be subject to local authority scrutiny by the same council, in relation to that service or function.
(2) This shall include—
(a) provision of information to a relevant overview and scrutiny committee, as defined by the Local Government Act 2000 (c. 22),(b) attendance at a relevant overview and scrutiny committe to answer questions,(c) a requirement to consider any report or recommendations of an overview and scrutiny committee, and(d) a requirement to respond to the overview and scrutiny committee indicating what (if any) action the organisation proposes to take.”
The noble Baroness said: I wish to speak also to Amendments Nos. 216 and 217. These amendments take us to the area of overview and scrutiny. Amendment No. 215 deals with who shall be subject to the attention of an overview and scrutiny committee. The amendment proposes that this should extend beyond the immediate local government family to others who provide services.
The White Paper stressed the need to expand competition and to have a diversity of providers. I think that it said that service deliverers should not be protected from public scrutiny. The requirement could apply to contractors delivering services through contracts and companies involved in public/private partnerships, which are a very topical issue. I say in parenthesis that the Greater London Assembly has paid some attention, and will pay a good deal more, to the London Underground PPP with Metronet. However, it is a bit early to apply the word “legacy” to the new Prime Minister. The amendment could apply also to PFI consortia, joint ventures, strategic service delivery partnerships and so on.
The Bill extends councils’ scrutiny powers to enable them to require the attendance and engagement in scrutiny of public service bodies defined as “partner authorities” in Clause 106. Partner authorities have a duty to co-operate in the context of local area agreements. They are required to take part in scrutiny and to have regard to scrutiny recommendations where the scrutiny report or recommendation relates to a local improvement target in the local area agreement. Amendment No. 216 would strengthen the duty to take part in scrutiny by requiring participation in scrutiny meetings as well as the provision of information. I am sure that the Committee will understand that it is not possible adequately to scrutinise an activity unless one can ask questions. Simply receiving written information is not enough. Amendment No. 217 would extend the scope of scrutiny to require the participation of partner authorities more broadly on issues which are of specifically local concern.
This area was debated in Committee in the Commons where the Minister referred to the first of my amendments as being “unnecessary and potentially bureaucratic”. She added that it “could undermine accountability”. She raised an interesting point. Is it confusing and does it dilute accountability to require contractors to provide information to overview and scrutiny committees, as she said? She talked about encouraging,
“a culture in which partner authorities could shift responsibility away from the organisation holding the agreement with the council and on to the contractor”.—[Official Report, Commons, Local Government and Public Involvement in Health Bill Committee, 22/2/07; col. 380.]
It is interesting to note where the balance lies in this. Intellectually, one should hold to account the partner authority which engages the contractor. That is absolutely right. But in a world where we look to contractors to do so much work for local communities, and where they are brought in by the local authority, it is right to consider whether the contractor should be subject directly to the scrutiny function.
Contractors would also be witnesses, as it were, in this structure. What they have to say in explaining how things are working as part of the total picture is important. I should like to think that the Minister’s comments in the Commons constituted a rowing back from contracting out services, but I suspect that they were not.
The Minister in the Commons also talked about overview and scrutiny committees being able to investigate any issue, to decide for themselves what they wanted to do and to “ask anybody to attend”. She referred to ploys that an overview and scrutiny committee might use to shine the spotlight on an unco-operative contractor. That is all very well. She referred to the occasion when the noble Lord, Lord Hattersley, did not accept an invitation to appear on the programme “Have I Got News For You” and a tub of lard was put in his place. However, you can do that only once. The formal arrangements and powers are important. I would not want to symbolise the shortcomings of local government members by putting tubs of lard in their places and recording that in the minutes. I do not think that is the way to go. I beg to move.
The name of my noble friend Lord Hanningfield is attached to this amendment. Therefore, it is clear that we support it and are in general sympathetic to it. It needs to be made clear that it refers to organisations and contractors that are funded by the council; that is, the council is handing taxpayers’ money to people to do a job for the council. That covers not only private organisations, but voluntary organisations and, as the noble Baroness, Lady Hamwee, said, it applies to contractors, who are being paid by contract.
The whole of this part of the Bill is designed to increase the authority and power of overview and scrutiny, which until now has been a toothless tiger—no one much enjoys it and it has not had a hugely influential role. That is beginning to change. Interestingly, a short time ago three overview and scrutiny committees in my area looked at a plan for bringing two hospitals together, of one of which I am chairman. The three scrutiny committees worked together. It was a very effective inquiry into the proposals, which produced an effective and important report. There is beginning to be more of a role; clearly, where council money is concerned, overview and scrutiny ought to be able to extend its role, which is very important.
There are endless areas—IT systems, care of the elderly in old people’s homes, contractors providing food and voluntary organisations providing services for bathing and, in many cases, now running old people’s affairs. It is crucial that the overview and scrutiny committee should have a role and be able to be part of a rigorous process that enables it to get information. It is not satisfactory to say that a written report will be made and that someone will not need to appear. As the noble Baroness, Lady Hamwee, said, that would be useless. You need to be able to ask people questions, to see the colour of their eyes and how they respond to the question. It is over-protection of people in that position that they should not be required to appear and give information as put forward. Some might be limited, but it should be there.
For those reasons and because local area agreement targets will need to be scrutinised—some of those targets will be with people receiving public money—I think that the two amendments are extremely important. I therefore support them.
I entirely agree that the amendments are important and I appreciate the spirit in which they are brought forward. Obviously, we want to ensure that overview and scrutiny committees are able to hold public service providers to account. Unfortunately, we do not think that the amendments are necessary for that. I will try not to duplicate what was said in the Commons Committee, but it is difficult, because the arguments offered there were sound. I will try to find different language.
However, I took the point of the noble Baroness, Lady Hanham, about how overview and scrutiny committees could be seen as rather toothless. Part of the Bill’s purpose is to build on the Local Government Act 2000, as we have, to make three changes that will toughen up the overview and scrutiny committees and give them more power. Of those three ways, one essentially requires local authorities—executive members and members—to respond when called to a committee; they are required to attend and to respond to what the overview and scrutiny committee says. What have now come into the frame are the partner authorities; in the Bill is a requirement that information should be provided from partner authorities connected to the local area agreements and that they should sit together. There is also the duty to have regard to the report and recommendations of the overview and scrutiny committee. Those are three important changes that toughen up the O&S committees.
The point about contractors is, however, important. As the noble Baroness said, a lot of work is now done through commissioning. Our principle, which is why we cannot accept the amendment, is the importance of those who are commissioning—the local authorities and public service providers—actually being responsible for the quality and delivery of the work that they commission. Once you start asking contractors to turn up and account for themselves, you have let the contracting body off the hook. It is terribly important, given the pattern of commissioning, that you get the responsible people to come and explain why they actually contracted those people, if it turns out that they have not got the capacity to deliver or whatever. Sometimes it is no good asking the IT provider to come. You want to know who made the decision, on what grounds and on what evidence. We might find ourselves in a position where we are allowing partner authorities to shift responsibility.
It is perfectly open to the overview and scrutiny committees to request anyone to appear before them. If they feel that they have not got to the bottom of something in this situation, then they can call the contractor to come. It is a slightly different context, but there is nothing to stop them doing that. Furthermore, when local authorities contract, they have to specify in the contract those arrangements that would enable them to obtain information from the contractor, so that they in turn are able to respond to a request from an overview and scrutiny committee for information. A means for councillors to obtain information from contractors exists. We have provision for making information available. On those grounds, I have difficulty with Amendment No. 215.
Amendments Nos. 216 and 217 concern the requirements on partner authorities to respond to an overview and scrutiny committee. In response to Amendment No. 216, about partner authorities being required to attend to provide information, we think that the regulation-making powers under Clause 123 are sufficiently wide enough and that they address the question of attendance. We intend to provide in the planned regulations for partners to appear before scrutiny committees. However, I think it wrong to impose a blanket requirement on partners to attend in person. I take the point that on some days you have to look a person in the face in order to test out resolve, commitment and so on, but I do not think that where councillors are working in partnership with public service providers it is all that helpful to allow overview and scrutiny committees to compel attendance. In some instances they are statutory bodies in their own right. We do not want to destabilise or undermine relations. We think it right to provide discretion about whether there is oral evidence or a written submission. My impression is that if the written evidence is not sufficient, they could always call for oral evidence afterwards. I should have thought that that option remained open to them, but it may be appropriate in some circumstances simply to have written submissions. That would certainly reduce the work of the committee.
Amendment No. 217 requires partner authorities to have regard to any overview and scrutiny report. As I have explained, overview and scrutiny committees have the power to make reports to their executive on any matter that affects their area—quite rightly. We all probably agree that where the councils have formal partnership arrangements with local partners, it is right that councillors should be able to send reports to those local partners to which they must have regard. The Bill requires that where councils and local public service providers work together on LAAs, local partners will be required to have regard to reports relating to the LAA targets. That is the focus and what they would want to be chasing up and ensuring that they are getting delivery on. It would not be appropriate to allow councillors to require partner authorities to have regard to wider reports on any matter relating to their areas. That strikes me as certainly losing focus. I could imagine, for example, that a council might do a report on global warming—that would be forward-looking in some respects—but requiring partners to respond to that report would be taking it beyond their scope and taking up time that they might be rather short of.
We need to strike a balance, focusing on matters where partners work with local authorities, rather than exposing them to the potential burden of responding to a whole range of reports. Once again, I hope that we have struck the right balance in the Bill. I hope that noble Lords are satisfied with those explanations.
I think we will end up simply differing on this. I wrote down the words “horse’s mouth” as the noble Baroness was speaking. That was a reference to the contractor, not to anyone who is taking part in the debate. I suppose it depends on who is the horse for this purpose, whether it is the contractor or the commissioner. As I said in moving the amendment, it is important to hold the commissioner to account, but this would be an extra tool or mechanism that adds to the powers of the overview and scrutiny committee.
I am sure that I have seen something somewhere in the Bill about defamation and whether there is qualified or absolute privilege in overview and scrutiny committees; it might have come at a different part of the Bill. It occurred to me to think about that only as the noble Baroness was speaking. It is much better to be able to say to a contractor, “There are assertions that you have not done so and so; now tell us about it”, rather than having a debate with the commissioner that brings into play allegations about the contractor’s services. We should perhaps follow up that point, which is important in terms of how these things might function. Essentially, in the other comments by the Minister, I would characterise her as saying, “It is not necessary”; and I am saying, “Better to have a stick and not to use it than to assume that the stick will never be necessary”.
On Amendment No. 217, I would not want to envisage a lot of worthy reports gathering dust. It is important that they are part of a process and not the end of another process, which is why I suggested that regard should be had to them, which is not such a high obligation. However, we have a slightly different view on how these things may work. We will see. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 121 [Reference of matter by councillor to overview and scrutiny committee]:
215ZA: Clause 121, page 77, line 9, leave out “local government”
The noble Lord said: I will speak also to the other amendments in the group, Amendments Nos. 215ZB and 215ZE. We are coming on to discuss what has been called the community call to action. I take it that this is meant to be one of the really sexy parts of the Bill, which provides an exciting new right for people in communities and for communities to call their representatives to action and to achieve action. When this was first revealed in the local government White Paper, some of us on these Benches looked at the charts showing how this would work and we fell about laughing. Even now I do not regard this as much more serious than that. It might be a bag of beans, but it is not more than a bag of beans as far as the community and action are concerned, or even—and this is what it is really about—concerning what ordinary backbench ward councillors can do.
This is all tied up with the role of backbenchers, why people become councillors and the undoubted feeling in local government that the role of ordinary councillors has been downgraded since the introduction of new arrangements in the 2000 Act. We can talk about whether that is justified and what can be done about it, but there is a widespread feeling in local government that ordinary councillors do not have the status and the ability to influence things that they used to have; the existence of that feeling is a fact.
A very interesting report was produced recently which unfortunately came a bit late to inform the discussions on the Bill. It is The Role of Councillors: Report of an Inquiry by the All-Party Parliamentary Local Government Group. I will briefly refer to that report, because it confirms what I have been saying. On page 9, one of the witnesses, Councillor Katrina Bull from Nottingham—who I do not know at all—says:
“I would think backbenchers feel they are not part of the decision-making process any more … the perception is that they are excluded from lots of decisions because of the new structures”.
Professor Steve Leach says:
“Overview and scrutiny, which was the main element of the Act which involves ward councillors, has struggled to establish a high profile among local councillors”.
Councillor Maggie Foot from South Somerset Council—who I do know—says:
“Scrutiny is becoming much more issue-led”.
She is from a council that is making a real effort for overview and scrutiny to be successful.
Two elements are identified in the report: first, holding the executive to account and, secondly, investigations and policy development. It is interesting that, more and more, councils are finding that the investigations and policy development side is productive and helpful and provides a useful role for backbench councillors. Simply holding the executive to account and doing investigations some three, six or nine months after things have happened has turned out, in many cases, to be fairly arid.
The question that comes to the fore here and which is crucial to the amendments is: why do councillors get elected in the first place? Why do people stand for the council? Some might stand because they see leading councillors as role models in the community and they would like to be one of those people in due course, or even immediately. We have all come across such people. I do not think, on the whole, that councillors get on to a council because they want to take part in overview and scrutiny, even if they have heard of it before they get elected. It is well understood that most people, when first elected, want to represent their ward. They also want to take part in decision-making about things that affect their ward. Most new councillors do not expect to take part in the broad strategic decisions or the major decisions that the council makes, but they expect to be able to have a direct influence on what happens on their patch.
Page 14 of the interesting report from the All-Party Parliamentary Local Government Group sets out a table of 12 roles for councillors. I will not read them all out, but they are interesting. They range from managing relationships within a political group, to attending whole council meetings, to advocating on behalf of their ward, to taking part in overview and scrutiny, and so on. What is missing from that list is the idea that councillors want to be part and parcel of the decision-making process about the things that happen in their ward, in the slightly wider community, in the town or rural area or in their part of the city. Ultimately, they may become leading councillors and take part in strategic decisions. What is fundamentally missing in the new arrangements is the sense that people are able to take part in the decisions that affect their patch. That is at the heart of it, and that is where we need to get to.
What do the proposals do? A community call for action re-enacts Section 21(8) of the 2000 Act, which enables members of overview and scrutiny committees and members of sub-committees of those committees to put items on the agenda. That is no big thing. Proposed new Section 21A(1)(c),
“enables any member of the authority to refer to an overview and scrutiny committee of the authority of which he is not a member any local government matter which is relevant to the functions of the committee”.
I am astonished that there are councils that do not allow that anyway. I know there are councils that do not allow it, and giving people that right is a very small advance. But it is something that councillors ought to be able to do without legislation. It is a minor step forward—it is a bag of beans. In councils that are run so autocratically they do not allow that kind of thing, it will be a step forward. But as a community call for action, it is incredibly weak. These amendments attempt to firm it up a bit. Amendment No. 215ZA seeks to take out the words stating that it can only be a local government matter, and Amendment No. 215ZE to take out subsection (10), which defines a “local government matter” as a matter which,
“relates to the discharge of any function of the authority”
“affects all or part of the electoral area for which the member is elected or any person who lives or works in that area”.
When people vote for a councillor, they do not expect that that councillor’s ability to raise issues will be limited to the things that their authority can do. That is particularly so in two-tier areas. If there is a local health issue—perhaps a controversy about building a new local health centre or closing one down—everyone will expect the councillor to be able to take part. Under this legislation, overview and scrutiny committees will have a wider remit than they have now—which would be welcome—so why on Earth can a councillor not raise that as well as something that is the direct responsibility of the authority? Ideally they ought to be able to raise anything. If the overview and scrutiny committee then says that it is not going to do it because it has no power over the trains or whatever, then so be it. But it ought not to be limited at the initial stage when the councillor makes the application. It ought to be allowed particularly within the wider new powers of overview and scrutiny committees generally.
Amendment No. 215ZB refers to proposed new Section 21A(3), which says that the member has to have regard to guidance from the Secretary of State before they put forward an application. As my noble friend said on the previous group of amendments, “having regard to” is a weak form of words, and perhaps it is. But when it says, “Have regard to guidance issued by the Secretary of State”, and it is statutory guidance, people will have to obey it whether they like it or not. That means that the Secretary of State can give instructions without having to get orders through Parliament. That a member should have to have regard to guidance from the Secretary of State is ridiculous. The ordinary ward member ought to be able to put forward what they want. If the authority then has to have regard to guidance, fair enough. At the very least, any guidance ought to be locally determined. So that clause ought to be taken out—it is a step too far where detailed national guidance is concerned.
The final point relates to Amendment No. 215ZE, which would remove proposed new Section 21A(10)—which restricts “local government matter” not to the function of the authority but to all or part of the electoral area, or any person who lives or works in that area. Who on Earth, apart from councillors and other such people, knows where ward boundaries are? Sometimes they are obvious, but very often towns are divided in a completely arbitrary way between wards and nobody apart from the people who represent those wards knows where the wards are. If you get elected as a councillor in a town like Wilmslow in Cheshire which might be divided into four or five wards for the district, you ought to be able to raise any issue that affects that town. But councillors do not represent just their ward; they represent their town, their wider community, the whole council area and their political party if they have one and their own views. This is the balance—the synthesis—that all councillors have to sort out to their own satisfaction. If there is a call to action and an ability to take it to an overview and scrutiny committee, it ought to be open to a councillor to take on any issue, not just one linked to their own ward. Otherwise it is very narrow, very restricted and, I’m sorry to say, not very sexy at all. I beg to move.
I am sorry that the noble Lord cannot give a warmer welcome to this, because so much of what he said is reflected in what we are trying to do. I have a lot of sympathy with the points he raised about why people stand for the council and what it is that makes them want to represent an area and offer public service. What we have done here is to find ways of strengthening the role of the ward councillor by giving greater visibility, raising profiles and making clearer the expectations that constituents should have of ward councillors. The noble Lord is right to say that many local councils undertake a version of this as a matter of course, but he is also right to say that not all do.
We have tried in the Bill to flag up that it should be the expectation of local electors that their council is there to raise issues that concern them and that can be acted on in ways that are above and beyond the normal processes of the council. I think we are right to express that in terms of the citizen’s right to be able to make a community call for action. So although I think that there is much we agree on, I am sorry that we do not agree on the significance of this. It is a mechanism that allows local councils to escalate issues of concern to their local community by referring them to the O&S committee. It is certainly for the committee to decide whether and how to proceed, but once an issue is raised, it must put it on the agenda and address it. If the committee chooses not to pursue the matter, then it must let the member know the reason, which is a new and very important power to pass on to the constituent. If it does take a matter up—and it has a lot of flexibility in how it does so—it has to let the member know what recommendations it ultimately makes.
We have seen in the development of O&S committees over the past few years how some are turning into policy and development committees. It is often the case that an issue raised by a constituent can reflect either the failure or success of a policy, and how it might be developed. So what we are looking at is also a way of O&S committees becoming more proactive and growing. The clause also provides for excluded matters, which I want to address now.
Amendment No. 215ZA, taken with Amendment No. 215ZE, would change the effect of the clause by enabling any member of a local authority to refer any matter. This switches the focus away from the community call for action. The noble Lord himself said that if they were to raise a matter of improving a railway, for example, they would know that they could not do anything about it. To raise matters over which the council has no control not only diminishes the purpose of the community call for action, but also reduces the credibility of the councillor as well.
Secondly, I detect a contradiction in what the noble Lord said. He was extremely focused on the ward councillor, and the first function of the councillor is to represent the ward and how things affect people in the ward. He is right to do that, and to speak of the direct influence of the people in the ward. But Amendments Nos. 215ZA and 215ZE together would mean that this measure would empower the elected member to go beyond the ward. Our intention is that the elected member is able to force a committee to address an issue of concern to the community in the area that he was elected to represent. That is what gives him his locus and his credibility—if and only if those concerns are about the way the council is doing its job in that area. Yes, ward boundaries are arbitrary and often people do not know where they fall. That area-based responsibility is important. The two amendments open the door very wide to people who are not as scrupulous as the noble Lord. This could become an opportunity to trespass across boundaries and issues in ways that would not be helpful to local people.
I will give the Minister an example and see how she reacts to it. Some time ago—this is an historical example—in my ward there were a whole lot of houses on a railway line, and the assertion was that the railway was affecting the houses and that they should be double glazed. Double-glazing those houses was the responsibility not of the council but of the railway authority. The council took up that matter as a result of pressure from local residents. It was not strictly a council matter—it was a matter for the railway. The only way in which any action could be taken was by the local ward councillor and the council putting forward the case. I do not see why a local councillor should not be able to take such a case to the overview and scrutiny committee as that is probably now the only way of getting the matter discussed. In the event, that matter was taken to a committee, which discussed it and the decision was that action should be taken to get British Rail to do something about it. You could not do that now because there is no committee to take it to; the only committee that you could take it to is the overview and scrutiny committee. If the noble Lord’s amendment is not agreed to, that would mean that you could not raise such a matter—that is, a matter for another public authority, not the council, but on which the council needs to effect some sort of amelioration.
That is a very good example. I was thinking of the example of double-glazing to deal with aircraft noise, which raises the same sort of issues. I wonder whether the Minister can answer the noble Baroness, Lady Hanham, in the context of the leadership role that local authorities are being urged to take as part of place-shaping and all that. Noble Lords have referred to local authorities acting as community leaders, which is a good thing; those points fit in exactly with that. To deny it frustrates the community leadership role.
Part of the issue is what exactly the role, scope and functions of local authorities are. In this instance, the local authority would have been acting under its responsibility to deal with nuisance—with noise—rather than with the railway per se. That is my understanding but I would be very happy to take the case away. Local authority powers and responsibilities are wide and there are ways to deal with the issue. That may be different from the case that the noble Lord raised about the powers; perhaps not. We will disagree on that.
One of the problems with the amendment is that removing the definition of “local government matter” from the clause also removes the specific focus of the community call for action. Incidentally, it also sweeps away the provision for excluded matters. We will discuss that later; it is important.
The noble Lord is not impressed when I say that the amendments are technically defective so I shall not go into detail on that. Whether they are politically defective he is happy to debate with me.
Finally, I turn to the issue of guidance. On Amendment No. 215ZB, we are only trying to help. This is not a heavy-handed intervention. We offered to issue guidance because the proposal is innovative and we thought that local authorities might find it useful. It will be light touch and we will work in close consultation with our good friends in the LGA. We are seeking to be helpful and positive. I hope that the noble Lord will withdraw the amendment.
That last comment about guidance is welcome but it raises the obvious question of why it has to be statutory guidance which will be read as having a particular significance. Material from central government may be helpful or a councillor may discard it. I understand that the Government may feel that it would be useful to suggest how the power might be used, and the clause is about the “what” of the power and the content. Those are two very different things. I come back to the first question, which involved whether non-statutory guidance should do the job.
I am grateful to the Minister for taking this matter seriously. We are not in any way against what the Government are trying to do here—we welcome it—but are disappointed that it is so feeble. I hope that the Minister takes our comments in that light.
I deliberately did not give lots of local examples. One of the big issues in the past year in Colne, where I live, has been the fire service: the proposal was to reduce the number of pumps from two to one. The local council was prominent in the campaigns to stop that; the Lancashire fire authority is a separate body. That is a proper function of a district council in such circumstances. I could bring to the Minister’s attention dozens of cases that are similar to the case raised by the noble Baroness, Lady Hanham; that is what local councils do. They are the only body that has the legitimacy of being directly elected and they therefore take on anything to do with their community. The fire station in Colne happens to be in my ward—just—but there are three other wards in Colne. Could my two ward colleagues in Pendle have raised the matter if I had not thought it was important, although others in other wards could not? That would be ludicrous. The fire service covers more than just the town. There is an issue here which I hope the Minister will think about seriously. If the new power is to be used effectively, it must be widened.
A brief point occurred to me during our debate. If, as a member of the public, I want my councillor to raise an issue but I have only one councillor or they are in the wrong party and for some reason will not raise it, why can I not go to another councillor in the town or the area and ask them to? It is a bit like the situation with the ombudsman; you used to have to go through a councillor if you wanted to take your council to the ombudsman. That was changed because a few people found that their councillor was being obstructive and refused to refer it. I used to take the view that you referred it on principle, whether or not you agreed with it. There is a practical problem there.
Finally, I do not think that there is a conflict between strategic leadership and local things. Strategic leadership, if it is good, is about wider opportunities for the whole district and area. We are talking about problems or issues in a neighbourhood. They are linked not to what the district or county council does but to the problems that people have in that neighbourhood. The problems often affect a series of different agencies. My concern about the scope being drawn too tightly—this is also my concern about statutory guidance—is that in some councils lawyers, officials or those running the council will try to keep the matter as restricted as possible. They will use legislation and government guidance to stop people doing things rather than encourage them to do things.
In many ways there are two types of councillor: those who want to encourage the public in and encourage that kind of activity, and those who want to say, “No, you are out of order and cannot do it”. In my view, if this is to succeed, it is very important that it is as open and responsive as possible. I hope that the Minister will consider some of the issues that have been raised, if not my drafting. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
215ZAA: Clause 121, page 77, line 12, leave out from beginning to “enables” in line 13 and insert “Provision for a person for the purposes of subsection (1) is provision which”
The noble Baroness said: I shall speak also to Amendments Nos. 215ZC and 215ZD. It is helpful to have time to read parts of the Bill and to hear explanations on them. As we have debated today, I have realised the error of my ways in tabling Amendment No. 215ZAA. I shall not speak to it, as I now understand the clause.
Amendment No. 215ZC provides that an O&S committee or sub-committee can ask for information from members of the public. Here we are dealing with the so-called community call for action: the opportunity for a ward councillor to bring the matter to an O&S committee. It took me some time to find this clause in the Bill; I knew there was to be a clause that allowed the public this extra right but there is no mention of the public in the clause and I thought there should be one. An overview and scrutiny committee inquiring into an issue will want to hear from the people who are affected by it and possibly the people who brought the matter to the ward councillor. However, others might feel that the ward councillor is making a case that it applies to only one or two people, but there is a wider and different interest which needs to be aired. I speak to that amendment with some feeling.
Amendment No. 215ZD adds to the provision that if a committee decides not to exercise the powers that we have heard about, it has to tell the member that it will not do so and give the reason. I am saying that it should publish its decision and its reasons. Local authorities are used to publishing things; that is the way in which the system works. Notices of what will happen are published and records of what has happened are published. This amendment should fit in with that. I beg to move the amendment and I do not expect an answer from the Minister.
I shall not even comment on Amendment No. 215ZAA, because I, too, now have a completely superfluous note. I see nothing wrong with the way in which the draftsman framed the provision in the first place. The noble Baroness could be forgiven for saying that she had to search for the clause in the Bill.
Amendment No. 215ZC inserts a new subsection purporting to empower O&S committees to ask for information from members of the public. It does not go so far as to say that they may require it, which I believe is right. This power already exists in Section 21(13) of the Local Government Act 2000. It already provides that an O&S committee may invite any person to attend meetings of the committee. I think that takes care of that point.
Amendment No. 215ZD would require O&S committees to publish their reasons when they decide not to act on a reference from a councillor. I have to go back further because Section 21(11) of the 2000 Act provides for Part VA of the 1972 Act—access to meetings and documents—to apply to overview and scrutiny committees. As the noble Baroness said, local authorities are very used to publishing things and that means that the public should have access to the committee meetings, to the documents of the committee and to the decisions that are recorded. In effect, that will be the publication that she seeks. There may be some circumstances—for example, where confidential information is discussed—where access is withheld or restricted, but I believe that the provision she seeks exists already.
The difficulty experienced by Members of the Committee in tracking through the legislation suggests to me a rather strong case for guidance to ensure that people understand where the rights are and where publication is available.
I can see that nothing would give the noble Lord more pleasure than if I agreed that we should tie up the whole of the next Session consolidating local government legislation, perhaps from the old local government board at the beginning of the last century. I shall see what I can do.
I have now found the provision in Section 21 of the 2000 Act to which the Minister referred. I am grateful for that. I should have been reading even more widely. It was exactly Part VA that I had in mind when I drafted the amendment. I am glad to have the confirmation that it applies. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 215ZB to 215ZE not moved.]
215A: Clause 121, page 77, line 46, at end insert “and”
The noble Baroness said: This brings us to the community call for action. We support the additional powers being given to ward councillors with this community call for action. We believe that it strengthens a councillor's ability to take action to address local problems raised by their own constituents. I am also mindful of the amendment that I supported previously and which was tabled by the noble Lord, Lord Greaves, to make that even stronger.
However, some issues prevent this welcome power and we think they should be removed from the Bill. Amendments Nos. 215A, 215B, 215C, 215D and 224A seek to ensure that the community call for action covers all local issues that include crime and disorder matters and to ensure that the Secretary of State cannot use his discretion to exclude matters from the community call-for-action process. It is with some frustration that we think that the Government have not listened entirely to what has been said about this and that there is a widespread consensus, shared by the Local Government Association and people such as the National Council for Voluntary Organisations, that there should be just one community call-for-action process.
I cannot grasp why a councillor is able to refer a matter affecting their area to scrutiny by the council but cannot do so if it relates to a crime and disorder matter. There are problems here because of things such as ASBOs, which one should be able to raise. A councillor may have in his area a council estate where ASBOs are being issued. When there is a criminal aspect to a matter, it is of relevance. We cannot see how having two separate community call-for-action procedures—the one set out in this Bill and the one covered by the Police and Justice Act—will in reality operate. It will cause confusion for local people and councillors.
The Local Government Association has highlighted some important points that make it essential that these amendments and clauses are added to this Bill. The community call-for-action process has far clearer benefits in this Bill than that in the Police and Justice Act provisions. The additional powers given to ward councillors make certain that less council time is taken up by frivolous and vexatious complaints. That contrasts with the Police and Justice Act, where a member of the public, regardless of the council’s refusal to send the matter to the overview and scrutiny committee, is still able to appeal to the executive. For those reasons, these amendments should be accepted. I beg to move.
I fully support my noble friend Lady Hanham on this issue. I am of course no longer chairman of the Local Government Association, but I can say how strongly the LGA feels about this issue. As a member of a local authority, I know that some individual issues that come forward, such as education appeals or planning, are not dealt with by scrutiny, but that issues coming forward from the community, such as crime, social disorder and simply the fear of crime, are often so limiting to people’s lives. The inclusion of these amendments is therefore absolutely fundamental, and I give them my full support.
This is certainly a powerful lobby. The noble Lord may no longer be with the Local Government Association, but he is clearly not going to get away from it that easily. We know that these issues have been raised by the LGA. There is an important difference between the measures already in place for crime and disorder matters via the Police and Justice Act, and those which are proposed for local government matters. Noble Lords will know that, for crime and disorder, any person who lives or works in an area can initiate the process simply by asking the councillor representing it to consider a crime and disorder matter. The councillor is then under a statutory duty to respond, indicating what action he proposes to take. The councillor has a power to refer it to the crime and disorder committee. He can do so even if no one else has asked him to consider it. If he declines to refer it, the person can, in a local authority operating executive arrangements, refer the matter to the executive of the authority, placing them under a similar duty.
The provisions of this Bill cover local government matters other than crime and disorder. They are simpler. The only person empowered to initiate the process is the councillor himself. No duties are placed on him. A little background: in the Local Government White Paper Implementation Plan, we undertook to work closely with the Home Office to ensure that our provisions, and those set out in the Police and Justice Act 2006, formed a coherent package, and bring them both into force on 1 April 2008.
Noble Lords will be aware that the Home Secretary has asked Sir Ronnie Flanagan to carry out a review of the Police Service, and to make recommendations around the end of this year. Part of his brief is to consider how to ensure that the public are driving local policing priorities and how to improve local involvement and accountability. I understand that the Home Office has recently indicated the need to reconsider the implementation date for community calls for action in the light of the review.
Amendments Nos. 215A to 215D, taken with Amendment No. 224A, would have the effect of bringing the treatment of community calls for action on crime and disorder matters within this Bill, taking them out of the Police and Justice Act and aligning their treatment. The Police and Justice Act received Royal Assent only on 8 November last year. The provisions have not come into force yet. Parliament very recently decided that it wanted crime and disorder matters dealt with in this way.
I am trying to follow the argument. I believe that the Minister is saying that these can be referred to the crime and disorder committees. Members of local authorities, in referring these to the local authorities themselves, see that the crime and disorder issues are intrinsically linked to youth, education, social care, family and children’s service issues. They must therefore be able to be taken by the local members to the local authorities themselves.
I would not dispute that. There is an inextricable relationship with social and economic affairs. But in the Police and Justice Act, it was decided that community safety issues were different and that it was a more reasonable expectation. People are so exercised about personal safety. They are exercised about their family’s safety, and the safety of their community and neighbourhood, so it required a more stringent process in place to ensure that it could be treated differently, with additional powers for the councillor. That is what the 2006 Act provided, and why the distinction was made.
That is the case we have made, expressed in the Act, for why there is a distinction in how councillors will respond. On the other hand, we also had to consider whether we should go in the other direction, placing an equivalent duty on councillors and council executives for any and every “local government matter”. But surely it would be insupportable for a local councillor to have to respond to everything that came from any direction. Most councillors are wonderful part-time workers, but to extend the duty to cover virtually all their work would impose an impossible burden. We have achieved a balance between those two situations in the Bill.
There is a third, unintended, consequence of the amendment. Section 19(4) of the Police and Justice Act provides that the community call for action should not apply to county councils for areas where there are district councils. The noble Lord, Lord Greaves, will appreciate that that was included to ensure that the measure has the local focus which was intended for it, and to prevent confusion between the scrutiny role of police authorities and county councils’ scrutiny committees. If these amendments were carried, that distinction would be lost.
Amendments Nos. 215A to 215D go further than that, to bring the treatment of crime and disorder matters within the scope of this Bill. They seek to deprive the Secretary of State of the power we propose for her to make an order defining other descriptions of excluded matters. We said in the local government White Paper that there must be circumstances in which the community call for action should not be available for all; this goes back to the 2000 Act. There are already statutory appeals processes—for example, on planning, licensing, council tax, non-domestic rates, the quasi-judicial functions and so on. In consultation with the Local Government Association and others, we will work at the detail of these exclusions, which is consistent with the present powers.
I understand the point that the noble Baroness has made. Her argument is being heard loud and clear by the Government. We do not feel that we can move on that, for reasons explicit in the Police and Justice Act about the importance of community safety. Again, the amendment has unintended consequences. We will have to ensure that measures to put community calls for action in place are implemented in a coherent way so that councillors, the police and the public can understand them. I assure the Committee that we will be doing that.
I suppose one of the best ways to do it would be to call them different things. We are here inviting the public to think that there is an entity called a community call for action. Why would they think that it would go either to one committee or another way? There is a real potential for confusion over this. The fact that the council is involved makes the whole thing much more confusing.
I hear clearly what the Minister says about the discussions that took place during the passage of the Police and Justice Bill. Not being involved in those, I do not know the content of that totally. But I am not sure whether consideration was given to the fact that this Bill was coming along, and that therefore a similar community call for action would be introduced in future legislation. I should have looked up whether those debates took place, but I did not. It is worth considering whether, when that Act came into force, it was realised that two areas were going to be covered by this in different ways but in the same community.
I am quite attached to the amendment. I understand that there may be some technical hiccups over it; we could begin to see how those could be ironed out. However, we must not have a situation where we have two similar processes going different ways. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 215B to 215D not moved.]
215DA: Clause 121, page 78, line 5, leave out from “matters” to end of line 7 and insert—
“( ) A member of an authority who exercises the power under subsection (1)(c) shall have the right to address the committee or sub-committee when it is discussing whether to exercise any of its powers under subsection (2) in relation to the matter, and if and when it does so.””
The noble Lord said: I shall speak also to Amendment No. 215DB. They are about the rights of councillors within the proposed system and within their authority generally. I referred to the report of the inquiry by the All-Party Parliamentary Local Government Group into the role of councillors, and I shall not say anything more about that now. However, I hope that we will find an opportunity to discuss that report in this House; perhaps it would be a suitable Question for Short Debate, when they come back in the new Session.
I find it thrilling to be here discussing councillors and what they do. Thirty years ago, I got a job as, effectively, the local government officer of the Liberal Party in our redoubt in Hebden Bridge in the Pennines. I spent a lot of time advising councillors on what they could do, how to do it, how to get things done and how to find their way through the particular system and culture that existed in their council. It is important that councillors are able to do that, but there is vast variation in the cultures of councils and the ways that they work, so I have tabled these amendments.
Amendment No. 215DA gives a member of an authority the right to address the overview and scrutiny committee that is considering his call-to-action request. In some ways, I had to pinch myself when I tabled this amendment because I asked myself which councils would not allow that. In the local government culture that I come from, councillors have always been able to attend any meeting of any committee, whether they are on it or not, and often take part in it in an informal way by asking permission or sometimes under the written or standing orders. That has been the case at county and district level. I regard it as something that should happen automatically, but I know from experience and from my colleagues that there are councils where it would be regarded as a heinous offence that should not be allowed. I think it ought to be written in as part of the process to strengthen it and make it work better.
I tabled Amendment No. 215DB knowing that there are some councils where some of the powers that be—senior staff and councillors—will do anything they can to restrict the ability of back-benchers to take part or to be influential. There are councils with a very centralist culture, which I would call a very Stalinist culture, although I am not saying they are necessarily left-wing or right-wing as it applies across the board. The purpose of this amendment is to set out that those things that already happen in councils should not be restricted by this new right. It should not be regarded as being the maximum right of councillors, but the minimum floor. For example, there are many councils where a councillor already has a right to refer a matter to a decision-making or other body of the authority, whether that is a committee, the executive or a member of the executive or cabinet taking a decision that has been referred to it under the new arrangements. There are many councils where councillors can make representations to such decision-making bodies in person in public, and there are many councils where anybody—never mind a councillor, any member of the public—can turn up to a committee and can have their three or five minutes’ worth—whatever it is in the standing orders—on an item on the agenda before the decision is made. I sit on a council where hundreds of people do that every year. We regard it as normal. Twenty years ago, it was thought to be revolutionary, but now it is happening in more and more councils around the country. It leads to better decision-making, and it certainly leads to people believing that decisions have been made after taking account of what they said. That should continue and should be expanded in councils that do not do it.
The danger of putting this in the legislation is that councils will think that it is how they have to do it and that they must go this far, but no further. I do not expect the Minister to think that this rather long amendment ought to be put in the already long Bill, but I hope that when the Government are giving statutory guidance on the various clauses about the community call to action they will give councils very strong advice that what is proposed is a minimum, a floor; that it should not under any circumstances be regarded as a maximum right for the public or councillors; that it should not affect existing rights for members of the public or councillors; and that they should go beyond it. That is the spirit of this amendment. I hope I shall get a generous response and look forward to the Minister’s reply. I beg to move.
The more I learn about the comprehensiveness of the noble Lord’s experience in local government, the more I wonder that I have the temerity to sit on the Front Bench and respond to him. He has clearly been doing this for so long on behalf of so many people, and it is a source of wonder and admiration to me. I do not mean that as flattery; it is a very impressive record.
I have a lot of sympathy for what he said. Amendment No. 215DA relates to the right of a member raising a matter to address in person the committee to which he referred it. However, we must retain the discretion of local committees to decide how and when they want to hear evidence from the people they call. New Section 21A(6)(b) already empowers, but does not require, a committee to have regard to representations made by the member. We have to oppose an interpretation that requires a committee to give a personal hearing to any member who raises any issue, however frivolous. Although I understand the sentiment entirely, this has to be a matter for the judgment of the committee. Some very serious issues would be raised if we were to accept the amendment and require committees to behave in that way. They are so experienced and know what they want to get out of evidence and out of people appearing before them. It would be counterproductive.
I now turn to Amendment No. 215DB—
How does the committee know what it will get from a member raising a subject? Will it rely entirely on that member writing a request for the committee to consider? Why would members not have a right, or why would the committee not want to hear that member’s representations? I do not understand why this should not be a member’s right.
It may be that the member does not want to exercise that right. He may feel more comfortable raising an issue or being able to set out a complex case in writing and maybe following it up with a personal appearance. It is difficult to legislate for that. How to approach it is best left to the discretion of the member and the committee.
The second point is that Amendment No. 215DB seeks to ensure that the existence of the community call for action is not taken as preventing local authorities engaging their communities in other ways. I could not agree more with everything the noble Lord said. It is a minimum, a new step, and it will certainly not sweep away both current best practice and future best practice. I have absolutely no doubt that the sort of example the noble Lord gave might be unique in some respects, but councils up and down the country are very proactive about engaging people in innovative ways and going beyond the usual suspects. That is admirable. It is reinforced in different parts of the Bill; for example, the new duty to inform, consult and involve, which we are putting on best-value authorities, takes that argument further.
Although I agree with much of what the noble Lord said, he was quite right to predict that I could not accept the amendment.
I thank the Minister for her slight enthusiasm for the ideas I put forward. She did not respond specifically to my request that the Government should seriously think about giving guidance that this is not a minimum, particularly giving guidance that authorities should seriously think about going beyond it. I shall leave that thought with her for the moment and hope that she will ponder carefully on it. As she said, there is a huge amount of good practice around the country—it was originally pioneered by the Liberals, but it is not now a Liberal thing—of involving people and councillors across the parties. The more people who engage in it, the more they will realise that it is good local government. It leads to better decision-making and it certainly leads to a great deal more engagement of the citizen, which is what the Government want. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 215DB not moved.]
Clause 121 agreed to.
Clause 122 agreed to.
Clause 123 [Powers to require information from partner authorities]:
215DC: Clause 123, page 78, line 26, after “authorities” insert “or registered social landlords”
The noble Baroness said: There are six amendments in the group, Amendments Nos. 215DC, 215DD, 216G, 217ZA, 217ZB and 217ZC. The amendments have the support of London Councils and are put forward on its behalf. London Councils is the body which represents all 33 London authorities.
The Bill currently allows local authorities the power to require information from partner authorities. We have just been discussing that. Those partner authorities have a duty to respond to reports by the overview and scrutiny committees. Registered social landlords deliver public services and receive considerable funding from central government in the form of capital subsidy to build new homes and revenue subsidy for rental charges through the housing benefit subsidy system. Hence overview and scrutiny committees should have the power to require information from RSLs operating in their local authority area, who should be required to respond to reports by the overview and scrutiny committees.
In the recent consultation paper issued by the Department for Communities and Local Government, Delivering Housing and Regeneration: Communities England and the future of social housing regulation, the Government stated that they propose to take forward the recommendation of the Cave review that all social housing providers,
“should have a statutory duty to engage constructively with the place-shaping role of local authorities”.
My amendments meet the Government’s commitment to ensure that registered social landlords are engaging with the local authorities and they seek to put this on a statutory footing.
Many elected members of the 33 London councils have expressed their concern about RSL management. Lack of responsibility is particularly evident in areas where registered social landlords have a small number of properties in a given area. London Councils has identified that of the 390 registered social landlords operating in London, 85 per cent operate schemes of 50 or fewer units within certain boroughs. That has led to inconsistency of service provision and management standards across social housing and left local authorities and tenants without appropriate influence over registered social landlords and a lack of accountability to their residents.
There is sometimes—not generally, but sometimes—a lack of transparency in the performance of registered social landlords locally. They are not required to disaggregate performance information locally, which makes it much more difficult to engage them in delivering local objectives. The Bill provides an important opportunity to ensure that social housing providers are brought in to work with local authorities and to be recognised as bodies which should be considered. I moved an amendment—was it yesterday or was it a few days ago?—raising that as an issue.
I should be grateful if the Government would support the positive move proposed in the amendments. I beg to move.
I strongly support the amendment moved by the noble Baroness, Lady Hanham. In doing so, perhaps I may say that when we discussed the previous group of amendments the Minister was very kind about the things that I have tried to do in my life. Only a few of us are here across the parties, but we have people with immense experience of different sorts. I hope that the Government understand that and recognise that we are trying to improve things—certainly in this part—and are not opposing the Bill out of hand.
The noble Baroness, Lady Hanham, is certainly one of the people with that experience. She spoke about small registered social landlords. I agree with her that that sometimes causes a problem, especially if it is in a part of the country where they do not have many properties and they are mainly based somewhere else. That can cause a difficulty. I want to speak in support of social landlords who exist after a large-scale stock transfer has taken place in an authority. They are not small players in the area but a very important part of the local scene. They are running what used to be, and what people still call, council estates.
In some cases, they are running the whole of the previous council stock; in other cases, in bigger authorities, it may be just part of it. In either case, they are running what people think of as council estates and, regardless of that, are important providers of rented housing and social housing in the area. In those circumstances, it is very easy to get into an uneasy relationship between elected councillors—the ward representation side of local councillors—on the one hand and registered social landlords on the other. If there has been a stock transfer, typically, the council will have representation on the board of the housing association. So at a strategic level, at the level of looking at investment patterns in the authority and overall housing and allocation policies, the authority is well represented. But from the point of view of the ward councillor, it is very easy for the new landlords, the new housing association, to say, “It is nothing to do with you any more”, and have a slightly offhand approach.
The proposal of the noble Baroness would go a long way to assist in that and create some accountability. At the moment, from what I am told by my colleagues in other areas around the country—I am not speaking about Pendle here where the relationship at the moment is very good—there are problems. I support the amendment, which I think would go a long way to solve the problem.
I would just add one ingredient to the discussion. Social housing providers are not the same as registered social landlords. Although I am very sympathetic to the amendment—it sounds to me like good practice for registered social landlords to behave as they are expected to and to provide information to their partner local authorities, as suggested by the amendment—unfortunately, they are not the only organisations empowered to provide social housing. Social housing grant is now available and will increasingly be given to private developers and house builders. This is despite my efforts to the contrary. But if you were to include all those providing social housing as being required to provide information to local authorities, you would be stretching this to include a large number of private sector organisations now moving into this field. That hazard is inherent in considering this amendment.
I am also happy to support the amendment. Social housing issues are, as we all know, immensely important and a great deal of public money is directly involved in registered social landlords. The point about consistency in providing information, as raised by my noble friend Lady Hanham, is important. Information helps to drive up quality, it adds accountability and I hope that in the long run it will also add choice. What we need to see in the housing sector is wider choice. Information helps to provide quality, accountability and choice.
Noble Lords have spoken with great experience and wisdom on this subject. I wish it were possible for me to give the noble Baroness anything other than the sort of response I gave her yesterday. It was yesterday, I think—it is hard to imagine what else we have done over the past week except this Bill. Noble Lords have spoken about the importance of social housing, the RSLs themselves and the other provision now coming in from the private sector. The problem is that we cannot deal with that so long as we are dealing with bodies that are not part of the public sector. The amendments would apply to RSLs the same powers that the overview and scrutiny committees have in respect of their public sector partner bodies. They would add them to the list of partners in all but name. However, RSLs are private, not-for-profit organisations and they use largely privately raised capital. They are regulated by the Housing Corporation but they are not part of the public sector. It is this legal problem which confounds us here and makes it difficult for us to treat them as if they were.
However, I can give noble Lords some encouragement. It may be that we have another tool which can deal with some of the problems that have been raised. I refer to the independent Cave review of social housing regulation. Many of the points made by the noble Lord, Lord Greaves, about the small provider—for example; the difficulty of regulating standards and the issues of quality and choice—are important and the growth of the sector presents a challenge in this area. The Cave review of social housing regulation has made clear recommendations on the engagement of social landlords with local authorities on place-shaping and on the role of stakeholders in the regulatory system. The Government are now consulting on their response and propose to accept the recommendation and incorporate it in housing legislation at an early opportunity. We will take the recommendations of the Cave review and see how we can strengthen the regulatory system.
It would be premature to agree these measures before the consultation has ended and in isolation from other aspects of the new regulation regime. But we are certainly not indifferent to the problems in the sector and to the sorts of problems that London Councils has raised in its support for this amendment. Unfortunately, the amendment is not the way to deal with the problem as there is the legal issue I have already described, but we have got a way forward into solving some of the problems.
It is all about missing buses. It is the most extraordinary thing that in this place Bills pass by us and we think of wonderful ideas about what will go into them. There is always another bus coming behind on which you can put another passenger and if you are lucky they will not get off before they get to the right stop. This has happened with the community call for action measure, which is exactly the same measure. It was put into the Police and Justice Act and now makes it difficult for this Bill.
We have raised this issue in good time. The Cave review is obviously extremely important, and I very much hear what the Minister says about the consultation, but we have a problem here and now. We are setting out powers for the overview and scrutiny committee to require and to get information about things that are to do with its own area. Every council is steeped in housing run in some way by registered social landlords, by ALMOs or by tenant management organisations. I imagine that ALMOs are bodies to which councils already relate because they are by definition still associated with them. However, registered social landlords are sucking up enormous sums of money. I hear what the noble Lord, Lord Best, says about other private organisations that are coming in. In our discussions on the previous legislation, we had quite a happy exchange about how to prevent that, but, at the end of the day, people who are in social housing believe that the council has something to do with it and has to help them.
How can we let this Bill pass without ensuring that the overview and scrutiny committee can get its paws on that? We need to think very carefully about that. If it is simply because the Bill is steered only towards partner authorities, cannot we change a word? There must be some way in which we can get a foot in the door in this Bill, because no amount of other legislation will do it. People will have to keep referring again and again to this issue. This is where we need it. However, I hear that the Minister has the problems. I simply think that it might be helpful if, between now and the next stage, we could talk about how we can get over those problems. I hear what other colleagues have said. Housing is such an important area, but it looks as though the overview and scrutiny will not get in on it. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 215DD and 216 not moved.]
216A: Clause 123, page 79, leave out line 18
The noble Baroness said: I shall also speak to Amendment No. 217C. They are in essence the same amendment. Amendment No. 216A relates to Clause 123(1), which is the first clause in which police authorities and chief police officers are excluded and which is about information that associated authorities—the technical term—must provide. Amendment No. 217C relates to Clause 124 and to recommendations going to “relevant partner authorities”—another technical term. My amendments were tabled to understand the Government’s reasoning behind this exclusion. The noble Baroness, Lady Hanham, talked about another bus coming along and hoping to jump on it. I might be told that the bus went last year and that I have missed it. Without wanting to extend the transport analogy too far, that is simply why the amendments are here tonight. I beg to move.
Amendments Nos. 216A and 217C would remove the exemptions for the scrutiny of police authorities from the provisions relating to the scrutiny of LAA partners. More specifically, Amendment No. 216A would allow the Secretary of State to make regulations about the information that the overview and scrutiny committee could require from police authorities. Amendment No. 217C would allow the overview and scrutiny committee to send reports to police authorities to which they could be required to have regard. The noble Baroness asked why the Bill is as it is. The exemption in the Bill regarding the overview and scrutiny of police authorities is not an accident or oversight; nor is it because we think that crime and disorder matters should be subject to strengthened scrutiny. Quite the opposite is the case. The amendment will simply duplicate what is elsewhere.
The Committee will recall that only last year the Police and Justice Act 2006 received Royal Assent. Sections 19 and 20 of that Act provide specifically for local authorities’ scrutiny of crime and disorder matters. These provisions are far stronger than the general local government scrutiny arrangements set out in Section 21 of the Local Government Act 2000. Section 19 of the Police and Justice Act 2006 provides that every local authority shall have a crime and disorder committee, which can make reports and recommendations. When it does so, it must provide every chief officer of police, police authority, fire and rescue authority, PCT and local probation board in the area, and any other person named in an order by the Secretary of State, with a copy.
Where such an authority or person then receives a copy of the report, they must consider it and respond, stating what action they are to take, and have regard to the report’s recommendations in exercising their functions. In essence this Bill strengthens councils’ overview and scrutiny by allowing them to hold to account those public service providers they are not already able to hold to account through the specific provision of crime and disorder bodies—by virtue of the Police and Justice Act 2006—and health partners, which are provided for by the National Health Service Act 2006. Given that we have only recently legislated to provide for scrutiny arrangements on crime and disorder, there is no need to bring these back before the House and duplicate them in this Bill. As I said earlier, we intend to work as closely as possible with the Home Office in order to make sure that these provisions are lined up together.
I realised that it must be a bus that had passed towards the end of last year. I ask the Minister one question arising from that: are all the functions of the excluded bodies covered by the Police and Justice Act? It is obviously right that legislation should be “lined up”; otherwise there will be confusion. In the lining up, are there any functions that might not go on one or other of those tracks?
I rise technically to oppose Clause 123 standing part of the Bill and to speak to the amendments grouped with the clause stand part debates. These are all probing amendments. Their purpose is to ask one or two interesting questions relating to overview and scrutiny. Amendments Nos. 217A and 217B and Clause 126 stand part probe the relationship between the district council’s scrutiny committee and the county council’s scrutiny committee in a two-tier system. The Minister will tell me that the amendments are not well drafted; I agree that they are not up to my normal brilliant standard. In particular, they probe the role of a district council’s scrutiny committee. The Minister is nodding, so the amendments at least establish their aim, which is to get some debate on that matter.
Can a district council overview and scrutiny committee make a report to the county council? I think that, under Clause 126, it can, but under what circumstances? Does it have to be by agreement, or can it take up an issue, even if the county is not too keen on the matter?
Clause 125 allows the setting up of joint overview and scrutiny committees between different partners. Amendment No. 218A probes whether such an arrangement has to be by agreement of all the partners, unanimously, or whether, for example, a county council could agree to set up a joint overview and scrutiny committee even if the district council or one of the other partners was against the idea. How would that work?
Amendment No. 222A probes the matters that a joint scrutiny committee between a district and a county can scrutinise. I am talking about a district scrutiny committee scrutinising a county council function. Why might just the local improvement target be involved? Why could it not be widened to a designated improvement target? It is likely that, in the basket of improvement targets existing in the local area agreement, some will be designated and some will not, and they may be closely linked to each other. Why, by agreement, can the committee not do a scrutiny investigation into anything else? If the county and district councils are agreed, why could not either of those scrutiny committees do a scrutiny review of any subject in which either or both of them were involved by agreement between the two?
On whether Clause 123 should stand part of the Bill, I wish to ask a question about the regulations, which cover, as I understand it, the whole of the overview and scrutiny function. They will be extremely important; the powers to require information from partner authorities are vital. There could be real difficulties if they are too bureaucratic or prescriptive, although there is the necessity to get the right information. Perhaps the Minister would comment on these regulations and the approach that the Government will take to them. They are some of the most important regulations in the Bill.
Clause 127, on guidance, refers to the whole of the overview and scrutiny function. Again, it would be helpful if we could see the draft guidance before Report after the Recess. When might the Government have at least some draft guidance on these matters? Will it be in the autumn like the other guidance that we have talked about? If so, how does the Minister define autumn?
I shall reiterate briefly what I said earlier. The Bill strengthens the O&S provisions in the Local Government Act, which enabled any overview and scrutiny committee to review or scrutinise and make reports to its council or executive on matters that affect the local authority’s area. The provisions enabled overview and scrutiny committees to invite any person before them and to request information from any organisation, and they required members of the executive and officers to attend before scrutiny committees. The Bill builds on those provisions in the 2000 Act by requiring executives and councils to respond to the reports and recommendations of an O&S committee. It provides that the O&S committees may require information not just from the council and its officers but also from the council’s local authority partners, and it allows O&S committees of county and single-tier councils to send reports to LAA partners, which they may require these partners to have regard to in exercising their functions. That is the context in which the noble Lord has asked some important questions.
The role of districts in formulating LAAs, as we discussed yesterday, is very important. I assure the Committee that we believe that district councillors and councils themselves must be vital partners in any successful LAAs. I also explained that in two-tier areas district councils would be placed on an equal footing to their county councils on the agreement of local improvement targets. Therefore, it is obvious that districts should also have a key role in holding public services to account. We have strengthened that role in two ways. First, we have provided for joint O&S committees with equivalent powers to upper-tier authorities when they are so desired. Secondly, we have made provision for regulations that will allow districts to scrutinise LAAs where they have a direct partnership with an LAA partner.
I will come on to explain why we have made that distinction and that restriction; we brought forward amendments in another place to clarify this. The point of creating joint committees is to enable us to make regulations to allow for the establishment of joint O&S committees in two-tier areas between district councils and their respective county councils. We brought that amendment forward because we wanted these joint O&S committees to be able to require information from and make reports and recommendations to LAA partners on matters relating to the attainment of an LAA target in the same way as a county or unitary authority could. We thought that joint committees were potentially a very important vehicle for improved working between districts and counties in two-tier areas. Therefore, in response to Amendment No. 218A, it would be wholly contrary to the spirit of joint working if we were to coerce local authorities into forming such a joint scrutiny committee. It would be counterproductive and something of a tautology. I assure the noble Lord that regulations will provide that the establishment of these joint scrutiny committees will be entirely at the discretion of the constituent local authorities. Therefore, I cannot accept Amendment No. 218A.
We will be issuing guidance about how joint O&S committees might minimise or avoid overlap with other O&S committees in the same area and we will commission that guidance in collaboration with key bodies. At this point I cannot give a date for the guidance, but officials are working exceptionally hard on this Bill. If I can provide some idea of when we can expect it, I will. But while we know that joint scrutiny committees could play a valuable role—and I think that many will take it up—that does not mean that there will not be a continuing role for O&S committees of district councils in two-tier areas to scrutinise district functions. We also recognise that, in some two-tier areas, councils will simply not be able to reach agreement on these joint committees.
We have also brought forward amendments in another place to make provision to strengthen the O&S committees of district councils of two-tier areas in their own right. The amendments that we have made allow us to make regulations under Clause 123 to enable district councils in two-tier areas to require information from local partners. The noble Lord asked me whether they would be able to send reports. Yes, they will. These amendments provide a new general power in Clause 126 to allow us to make regulations to enable district councils in two-tier areas to send reports to their respective county council where these reports also relate to matters that are LAA targets. Regulations under Clause 126 will enable us to make provision about the requirements on county councils to respond to those reports and on local public service providers to have regard to such reports.
I also explained when we discussed LAAs yesterday that, while there is a mutual duty in two-tier areas on both the county and the district councils to co-operate to agree LAA targets, it is equally important to avoid duplication and overlap. The county council, therefore, will have to have overall accountability for preparing the LAA. We believe that those local authorities that have responsibility for preparing an LAA should also have primary responsibility for holding to account any partner to whom a target specified in the agreement relates. So while the amendments that we brought forward are designed to give a real voice and real influence to district councils to recognise the responsibilities, in a two-tier area we must avoid duplicate scrutiny that would place unnecessary burdens on service providers, whoever they are.
The noble Lord’s Amendments Nos. 217A, 217B and 218A would allow, in two-tier areas, O&S committees of district councils and county councils to scrutinise and make recommendations to LAA partners on the same LAA target, including targets for which the district council might not be responsible. They would also allow O&S committees of district councils to send reports to their county council on any LAA target. So the answer to the question why we have restricted the scope of the district is essentially to avoid duplication and the bureaucracy and confusion that might come with it.
The regulations will provide that the scrutiny committees will be able to require information from local public service providers in the more limited circumstances where they have formal partnership working arrangements. We have done that conscientiously. We also propose that the district council scrutiny committees should be able to send reports to their county council where, as a consequence of the partnership arrangements, they report on a matter that also relates to a target in the county council’s LAA. Obviously we will have to consult before we do that, but it is worth reminding ourselves that local improvement targets cover both designated targets and purely local targets—the undesignated ones. We are very anxious that district councils and two-tier authorities should exercise their scope for scrutiny on these partnership arrangements. However, a balance must be struck, otherwise reports will fly backwards and forwards on all sorts of areas and the resulting duplication will create exasperation, with the burden falling on public service providers, who are there to deliver services to the public.
I hope that, with that explanation in relation to the regulations as well, the noble Lord will feel able to accept Clause 123. However, I take the point about the importance of the regulations. I will look at the timetable and give noble Lords such information as I can about them.
I am grateful for that comprehensive reply, which is what I hoped that I would get when I tabled this series of amendments. I think that I understand the position a great deal better now than I did 10 minutes ago and I hope to understand it even better when I have read Hansard, so I genuinely thank the Minister. Her specific point was that the phrase “local improvement target” includes both the designated targets and the locally agreed targets, which I had not grasped previously. I am grateful for that as well. This is certainly going to be horrendously complicated; whether it will lead to great frustration and annoyance, I do not know. We certainly do not want duplication.
Clause 123 agreed to.
Clause 124 [Overview and scrutiny committees: reports and recommendations]:
216B: Clause 124, page 80, line 11, leave out “may” and insert “shall”
The noble Lord said: I shall speak also to Amendment No. 216F. The three further amendments in the group are in the name of my noble friend Lady Hamwee. Amendment No. 216B is a traditional “may/shall” amendment relating to the recommendations and the report of an overview and scrutiny committee. New Section 21B, which is to go into the 2000 Act, states:
“The overview and scrutiny committee may publish the report or recommendations”.
It seems to me that the word should be “shall”. Clearly, a general assumption that a report should be published will be subject to the constraints of acceptable information in terms of what can be made public. If a report contains personal or financial information, it may well be caught in that way. Subject to that, however, I should like to know why the Government are suggesting that there might be circumstances in which a report should not be published. The legislation should reflect a presumption for publication subject to the normal exemptions that apply throughout local government. Amendment No. 216F is consequential. I beg to move.
Amendments Nos. 216C, 216D and 216E in this group stand in my name and are all designed to achieve the same end. I congratulate those who deal with amendment groupings, whom we never see but from whom we receive many e-mails during a Committee day. As I prepared for today’s debate, I thought that I really should have sought to amend “may”. However, I find that my noble friend has done so in an amendment in this group.
Sometimes we are told that “may” really means “must”—that it is a slightly politer way of saying “must”—or that it means “may” but you must be reasonable about it, which amounts to “must”. However, I do not read it in that way in this instance. Like my noble friend, I feel that publication is important. I support his points. I shall not need to move my amendments.
It is wonderful to see the Liberal party so joined up, discovering their amendments synchronised by accident.
I am very happy to answer the questions raised by Members of the Committee. The noble Lord asked why we framed the Bill as we did. Amendments Nos. 216B and 216F seek to require overview and scrutiny committees to publish any report that they make and executives or councils to publish every response to such a report. Amendments Nos. 216C, 216D and 216E would seemingly narrow the instances in which executives or councils must respond to reports by requiring them to respond only to those published by an overview and scrutiny committee. I shall explain why I believe that the Bill is correct.
The Local Government Act 2000 enables overview and scrutiny committees to make reports and recommendations to their executive or council where they feel that it is appropriate, and they may determine whether it would be helpful to publish these reports. This Bill builds on these sensible provisions and requires executives and councils to respond to reports and recommendations and consider what, if any, action they will take. Where these reports or recommendations have been published by the overview and scrutiny committee, the executive must publish its response.
Together, these provisions grant overview and scrutiny committees the freedom to decide where it would be helpful to make reports and recommendations and to consider whether these should be published, so placing them in the public domain. However, Amendments Nos. 216B and 216F would require an overview and scrutiny committee to publish any report or recommendations that it makes and an executive or a council to publish all responses to reports of an overview and scrutiny committee. I shall explain why we do not think that this is very sensible.
These amendments would severely undermine the discretion of overview and scrutiny committees in relation to making reports and recommendations. For example, where a scrutiny committee reviewed a matter and concluded that it should make a report to its executive or council, perhaps on a sensitive matter such as community cohesion, but not publish it, it would not be able to exercise its discretion; the report would have to be in the public domain or not made at all. There are sensitive issues in local politics where such discretion should be retained. Not only would this requirement make this process more bureaucratic, but these amendments also indicate a lack of trust in the judgment of overview and scrutiny committees. The noble Lord will surely agree with me on that. If the committees were required to publish everything in the way that the noble Lord suggests, they could become risk averse and very cautious, whereas we want to see them taking a robust and far-reaching role in contributing to local decision-making.
Amendments Nos. 216C to 216E would achieve much the same effect. They would not place a requirement on scrutiny committees to publish all their reports but they would require an executive or council to respond to the reports and recommendations of an overview and scrutiny committee where those had been published. There will be legitimate reasons why a scrutiny committee does not always want to publish its reports, but the matter would still justify a response. These amendments go in the opposite direction to the previous amendments and would prevent this.
The noble Lord’s amendments seek to provide improved transparency. However, we should be very careful about making these sorts of requirements because they would reduce discretion and therefore effectiveness and they could sometimes raise rather problematic issues about whether it is wise and helpful to have things in the public domain if they are very sensitive or to prohibit a response being made just because the report was not published in the first place.
I am astonished by that response—I thank the Minister, but I am still astonished. It seems to go against the whole principle of how local government operates. I have never before heard the principle that if something is politically sensitive and is going to, is issued by or is discussed at a committee of the authority, it should be kept secret.
In my former role, I ran training sessions for councillors and potential councillors. We had mock council meetings, at which one of the motions was that the public should be excluded because of the political sensitivity of the matter to be discussed. That was a lampoon, which people were expected to denounce. There are clear rules and regulations within local government as to what is confidential and what is not. At an internal discussion stage, discussions among councillors, among senior staff and between councillors and officers are kept confidential, just as discussions between Ministers and civil servants are kept confidential—until someone leaks them. However, once a matter reaches a committee or similar body of the council, it is in the public domain, unless it meets the exceptions clearly set out in the Local Government Act 1972: financial sensitivity; pending court actions that could be prejudiced; personal matters relating to individuals; personnel matters, which ought to be kept confidential; and so on—there are probably more, which I have forgotten. This is clearly understood within local government. Some councils impose confidentiality more rigorously than others, but it is their choice; there are things that they are allowed to keep confidential. This Bill seems to be introducing a new area—recommendations from overview and scrutiny committees—that is to be treated differently from everything else that the council does. That is the clear implication of what the Minister said, which is why I said that I was astonished.
The Minister talked about reports and recommendations, but if a committee of the council is making a report or a recommendation, that is surely a public document, unless it comes within the accepted categories. To whom is it making the report and recommendations? As I read the legislation—the 2000 Act and the new Bill—those reports and recommendations are essentially made either to the council or to the executive, both of which are bodies that are not allowed by law to keep things confidential, unless they come within those categories. Now we have a category of sensitivity in local politics—the Minister’s phrase—which might be because of an issue such as community cohesion. I am not happy. The Government need, very seriously, to think about this again. I seriously ask them to do this. I am not trying to make a political point here, but I think that there is something wrong. On that basis, I beg leave to withdraw the amendment, but we may have to discuss it later. I hope that the Minister might correspond with us in the mean time.
Amendment, by leave, withdrawn.
[Amendments Nos. 216C to 217C not moved.]
Clause 124 agreed to.
Clause 125 [Joint overview and scrutiny committees: local improvement targets]:
218: Clause 125, page 84, line 7, leave out from beginning to “a”
The noble Baroness said: Amendments Nos. 218 to 223 are all on the same issue, and the Minister will have anticipated that they are at the behest of the Local Government Association. The amendments would remove the need for regulations to enable district councils in two-tier areas to set up joint overview and scrutiny committees with the county, or to report independently on local improvement targets.
The Government added new clauses on Report in the Commons to allow district councils to set up joint committees with county councils in their area, to review local area agreements and to enable district scrutiny committees to report independently on local improvement targets. The opportunity depends on the Secretary of State making the appropriate regulations to enable it to go forward. I do not know whether that was the quickest way that the Government could get this into legislation, to provide for regulations rather than spelling things out more fully, but the Local Government Association is concerned that the matter has not quite been achieved yet and that the district should not need to wait for secondary legislation or be dependent on secondary legislation to achieve that right. I beg to move.
I appreciate why the Local Government Association wanted an explanation for this. There is nothing sinister in making provision in regulations for joint overview and scrutiny committees and enabling district councils in two-tier areas to make reports to their county councils. It is simply a practical measure to address matters of important detail to ensure that the various scrutiny provisions dovetail, work effectively and help to prevent the duplication of scrutiny and unnecessary burdens. We have already discussed joint scrutiny committees and district councils, and we have discussed the necessity of preventing duplication between different committees in two-tier areas and not placing undue burdens on local public service providers.
Putting this provision in the Bill would make the legislation much more difficult to amend and would make it difficult to deal with the sort of detailed matters that would enable joint O&S committees to function effectively. Regulations not only enable one to go into matters of detail such as the composition, rules, procedures and remits of joint scrutiny committees, but provide the scope to address detailed matters to ensure that joint committees function effectively, such as in the appointment of sub-committees and co-opting people who are not members of the constituent authorities. We are rightly addressing those issues through regulations.
Clause 126 also allows us to make regulations regarding the requirements on local authorities, their executives and partner authorities in relation to those reports. However, to place that provision in the Bill could undermine an important safeguard that we want to create and it could mean that local public service providers in two-tier areas receive conflicting reports and recommendations. It is a very practical point.
Before making the regulations we would certainly discuss the matter with key stakeholders, including the LGA; the regulations will also be subject to consultation with local government and other stakeholders and partners. It may reassure the Committee to know that the House recently agreed that similar provisions could be made through regulations on the scrutiny of health matters in the National Health Service Act 2006 and on crime and disorder matters in the Police and Justice Act 2006. It is consistent with the way that we have approached those forms of regulation. I hope that that satisfies the noble Baroness and the LGA.
The Minister said that it is right to address these complicated matters through regulations. We should accept that this Bill has come too early; it would be right to address the matters fully. What a pity it is that the Bill arrived in an incomplete form—in some parts, we object very much to the form and in other parts it is incomplete. The noble Lord, Lord Bruce-Lockhart, looked as if he wanted to say something on this; no, he does not.
On the Minister’s answer to the question that I would have asked about consultation, can she say anything about the timetable and when the regulations might be seen in draft? Do the Government intend that the provisions, through regulations, will come into effect at the same time as commencement of similar provisions in the Bill?
I beg leave to withdraw the amendment.
[Amendments Nos. 218A to 221 not moved.]
Clause 125 agreed to.
Clause 126 [Overview and scrutiny committees of district councils: local improvement targets]:
[Amendments Nos. 222 to 224 not moved.]
Clause 126 agreed to.
[Amendment No. 224A not moved.]
Clause 127 agreed to.
Clause 128 [Overview and scrutiny committees: consequential amendments]:
225: Clause 128, page 86, line 42, at end insert—
“( ) in subsection (2), after “their overview and scrutiny committees” insert “, and any joint overview and scrutiny committees,”;( ) after that subsection insert— “(2A) In subsection (2), “joint overview and scrutiny committee”, in relation to a local authority (“the authority concerned”), means—
(a) a joint overview and scrutiny committee within the meaning given in subsection (2)(a) of section 245 of the National Health Service Act 2006 appointed by the authority concerned and one or more other local authorities,(b) an overview and scrutiny committee of another local authority exercising relevant functions (within the meaning given in subsection (1) of that section) of the authority concerned by virtue of arrangements made under regulations under subsection (2)(b) of that section,(c) a joint overview and scrutiny committee within the meaning given in subsection (2)(a) of section 185 of the National Health Service (Wales) Act 2006 appointed by the authority concerned and one or more other local authorities,(d) an overview and scrutiny committee of another local authority exercising relevant functions (within the meaning given in subsection (1) of that section) of the authority concerned by virtue of arrangements made under regulations under subsection (2)(b) of that section, or(e) a joint overview and scrutiny committee within the meaning of section 125 of the Local Government and Public Involvement in Health Act 2007 (joint overview and scrutiny committees: local improvement targets) appointed by a group of partner authorities (within the meaning of that section) which includes the authority concerned.”;”
The noble Baroness said: This short amendment is a consequential amendment to Section 21 of the Local Government Act 2000. It is necessary in light of the new provisions on overview and scrutiny in the Bill. This amendment sets out the meaning of a joint overview and scrutiny committee. It provides that a joint overview and scrutiny committee means: a joint overview and scrutiny committee within the meaning given in subsections (2)(a) and (2)(b) of Section 245 of the National Health Service Act 2006; a joint overview and scrutiny committee within the meaning given in subsections (2)(a) and (2)(b) of Section 185 of the National Health Service (Wales) Act 2006; or a joint overview and scrutiny committee within the meaning of Section 125 of the Local Government and Public Involvement in Health Act 2007. In short, this amendment simply gives effect to Clause 125 on joint overview and scrutiny committees. I beg to move.
On Question, amendment agreed to.
Clause 128, as amended, agreed to.
Clause 129 agreed to.
Clause 130 [Alternative procedure for byelaws]:
225ZA: Clause 130, page 88, leave out lines 16 and 17
The noble Lord said: This amendment is designed simply to probe the classes of by-laws to which the Secretary of State might choose not to apply the new autonomy provisions of Clause 130. The Secretary of State can devolve the power to make by-laws in some cases, but not in others. I hope the Minister can provide an explanation of what constrictions we may expect on the devolution of by-laws. It would be a great shame, and I know that local authorities around the country would be bitterly disappointed, if the great shining promise of devolved by-law-making powers were to be strangled at birth.
The other amendment seeks to probe the meaning of subsection (2)(c) of the proposed new Section inserted by Clause 130. Paragraph (c) seems to constrict the by-laws that local authorities can make, even when the power to make laws has been passed to them, because the Secretary of State will be able to determine what is defined as a subject matter. Does this mean that the subject matter of every by-law is the Secretary of State’s concern, and if so, to what extent? If this is a prescriptive back-door power then there is every reason not to include it in the Bill. Even if this is not the case, the subject matter of by-laws should be up to local authorities—if “subject matter” is not too wide a term. Should this paragraph not indicate more strongly that it refers to the framework rather than the substance? I beg to move.
It might help the Committee and perhaps speed progress if I speak now to the question on whether Clause 130 should stand part—or at least I shall speak now to the amendments of the noble Lord, Lord Hanningfield, and say what I was going to say on clause stand part at the same time. Then I will not have to say anything at all when we reach that stage. I indicated opposition the clause standing part precisely to probe the kind of thing that the noble Lord was probing in his first amendment. When I read it, I did not understand its purpose, but now I do and that is fine.
In the Public Bill Committee of the other place there was an interesting discussion of this subject and of how wide the by-law-making power might be Some Members of Parliament had thought that it was restricted to by-laws which are normally under the control of the Secretary of State in the Department for Communities and Local Government. My honourable friend Tom Brake put down an amendment that listed about 18 different areas of by-laws that he wanted to put on the face of the Bill in order to ensure that they were included in this section. It included things like the Commons Act and the Dartmoor Commons Act and Hackney carriages and omnibuses and all kinds of things. The then Minister, Phil Woolas, admitted that it was not clear what the Bill meant, but said that in the Government’s view it was quite clear that:
“If Parliament gives the go-ahead, we intend to use the powers to introduce the new procedures first in relation to byelaws that are confirmed by the Secretary of State for Communities and Local Government”.
Then he said:
“In future, other Secretaries of State with responsibility for confirming byelaws may decide, following consultation—that is not a caveat ‘may’, but a permissive power”—
which, on the basis of what my noble friend Lady Hamwee said earlier, he was suggesting meant “will”—
“that it would be appropriate to make use of the powers”.
He also cited some examples such as,
“byelaws to deal with countryside recreation in national open spaces, such as national parks and areas of outstanding natural beauty”.—[Official Report, Commons, Local Government and Public Involvement in Health Bill Committee, 27/2/07; cols. 389-90.]
There was quite a discussion in the Committee about Lake Windermere and other matters that I did not understand at all. But the general gist of Mr Woolas’s comments was clearly that, once the Bill is passed, there will be a steady roll-out of by-law-making powers across Whitehall departments. They are all happy about that and only too anxious to get on with it. By-law-making powers regarding libraries and museums were mentioned as well as the fact that those would be handed down once the Bill is passed, which we suggest should happen fairly quickly.
Is a clear list of the by-law-making powers that the Government will hand down to local authorities under this part of the Bill available, and if so, is there a timetable and a programme of which departments will hand them down first, second, third and so on, and how that will work? Are the commitments that Phil Woolas gave in the Commons genuine commitments that can be proved to be genuine, preferably before Report stage, or do we have to go back to the kind of amendment moved by Tom Brake in the House of Commons to stick more by-laws in the Bill? Those are my questions on this group of amendments.
I am grateful to the noble Lords, Lord Hanningfield and Lord Greaves, for the way in which they have spoken to the amendments. On Amendments Nos. 225ZA and 225ZB and on Clause 130 stand part, it may be helpful if I explain our approach in setting out in regulations the type of by-laws that will be subject to the alternative procedures. We have taken this approach to ensure that the Government can retain their function of confirming certain types of by-laws where it is considered important to do so. That is why I cannot simply give a list, as the noble Lord, Lord Greaves, asked. It will be appropriate for some departments not to be devolved in relation to by-laws and for others to be devolved. I shall go through it and we can discuss the matter further if necessary.
A large number of different authorities are empowered to make by-laws and a number of Secretaries of State have responsibility for confirming them. These by-laws, which will be subject to the alternative procedure, can be identified by a range of references, including the subject matter of the by-law, to ensure that there is complete clarity about which by-laws may or may not be subject to the regulations. I was asked about that. Our approach puts the position beyond doubt.
The clause enables the Secretary of State to make regulations establishing a new procedure for local authorities to follow when making the kind of by-laws specified in the regulations. The changes will mean that once a local authority has consulted on, prepared and advertised draft by-laws locally, those by-laws can then be enacted without the authority having first to seek confirmation from the Secretary of State.
The vast majority of by-laws regulate matters such as low-level nuisances in local spaces, such as parks and beaches, and the use of market places. Those are very much local matters on which local authorities and their communities are best placed to decide. We take the view that a reference to central government in those circumstances is an unnecessary bureaucratic step. It may be helpful if I set out the rationale for the approach that we are providing in this clause, whereby the Secretary of State will no longer have a role only in by-laws specified in regulations.
While it is clear that most by-laws deal with the essentially local issues that I have spoken about, some deal with matters where it might be thought that some central scrutiny should be retained. For example, as the noble Lord said, certain transport matters might be subject to by-laws made by private operators such as port management organisations which have no direct accountability to local people in the way that local authorities do. Another example might be by-laws that apply to activities in designated countryside sites that could raise issues of a far wider national interest. A regulation-making approach will mean that policy decisions on whether specific by-laws should remain subject to the Secretary of State’s consent can be taken on a case-by-case or subject-by-subject basis.
I was asked by both noble Lords why I was not removing the confirming role for all Secretaries of State. This is a decision for individual Secretaries of State to take, taking account of the subject matter and the locations to which the by-laws they confirm can apply. If they decide, following consultation, that a central confirming role is no longer required, they may opt to use the new powers.
Before the noble Lord withdraws his amendment, which I assume he is going to do, I must say that this is fairly unsatisfactory. I am grateful to the Minister for saying all that to us because it confirms our worst fears. It is therefore helpful to have it set out in Hansard.
It seems that the promises, if they were promises, or even the wish list promised by Phil Woolas, do not exist. It seems that negotiations with other Whitehall departments are either still taking place or have not even started yet. There is no guarantee at all as to which ones might come out. I give a small, local example: on the recreation ground on the hill above our house, there was a huge nuisance for a long time with aeromodellers flying their model aircraft in a very inappropriate place around and above houses. There was a long campaign, supported by the parish and borough councils, to bring in by-laws to stop it. It took 15 years before the borough council was able to do so, because the Home Office—the confirming authority—would not do it. The idea that local by-laws can be passed by local authorities in a democratic, local way was not a great step forward, but a useful part of the devolution which the Government were promising us. Yet, whenever we look at these devolutions, they seem even more feeble than they sounded at first.
I do not blame the Minister at all—she is just doing her job here—but her Government must stand up and tell us which departments are signed up to this. We understand very well that some by-laws will not be suitable, and some departments will be reluctant. We want to know which departments are signed up, and we want a clear list of those by-laws which are going to be released in the first, say, three years after the passing of this Bill. That is a reasonable thing to ask; perhaps the first 12 months. If we do not know that, we will not be very happy to let this clause go through at a later stage.
Before the noble Lord, Lord Hanningfield, comes in, I can give a little more detail. I understand that negotiations are quite well advanced with other departments. These will, of course, be subject to consultation. Other departments are currently considering whether the by-laws they oversee should be included in these initial regulations. Indications are that two departments are minded to do so, and at least two others may well be looking at being included. They are live, ongoing negotiations with, we hope, a positive end to them.
I thank the Minister for her response. I agree with the noble Lord, Lord Greaves, that it confirms our worst fears. One hoped that there would be something real in this, but there is still a lot of uncertainty about it. My noble friend is tempting me to divide the Committee on this one, even at this late stage this evening, but I shall not give in to that temptation. However, we need rather more clarity and more information from the Government about what the new by-law powers mean. We need local government to have real power rather than so many things still being controlled by various Secretaries of State. I shall not divide the Committee tonight, but we shall live to fight another day. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 225ZB not moved.]
Clause 130 agreed to.
225ZC: After Clause 130, insert the following new Clause—
“Timetable for implementation
Not later than three months after the passing of this Act the Secretary of State shall publicise when he proposes to make regulations under section 236A of the Local Government Act 1972 (c. 70) as inserted by section 130 of this Act.”
The noble Lord said: This amendment tidies up a simple point that came up in debate in the Commons. The Minister explained succinctly that where new Section 236A in the Local Government Act 1972 refers to the Secretary of State delegating the power to make by-laws, it applies to every department. I understand that that delegation will take place department by department—so we are back to the subject of the previous amendment—perhaps even by-law by by-law. It is a shame because, as the Bill is new government legislation, I presume that every department had to give the thumbs up that this delegation could take place with immediate effect in order to secure consistency on handover—a clarified process of the welcome devolution of the power to make by-laws that we talked about before. In the absence of such a common-sense measure, the Minister may be able to accept Amendment No. 225ZC, which ensures transparency in this process by placing a duty on every department to publicise, no later than three months after the passing of the Bill, a timetable for the introduction of regulations that will delegate certain by-laws to local authorities.
In the House of Commons Committee, the Minister said:
“We are out of the hangar and on the runway, but the engines are not yet fired up”.—[Official Report, Commons, Local Government and Public Involvement in Health Bill Committee, 27/2/07; col. 392.]
That is an extraordinary statement. I should like the Minister to explain exactly what it means. This is a very important matter in terms of greater transparency for the public and the wider plan of local government implementation of these measures. The amendment is intended as a constructive addition to the Bill to ensure greater clarity of implementation. I beg to move.
I support this amendment which puts in legislative form what I said earlier. I think the Minister was teasing us when she said that two departments have signed up and two are thinking about it. She is clearly not going to tell us which they are. Can we be clear that the two do not include the DCLG and that they are additional to it? She is nodding her head, so that is three departments signed up and two thinking about it. Can she tell us how many departments have by-laws that might be considered under this provision?
While we are seeing whether we can get the answer to the question of the noble Lord, Lord Greaves, perhaps I may refer to Amendment No. 225ZC of the noble Lord, Lord Hanningfield. I am afraid that my aviation expertise deserts me at this point on hangers, runways and so on.
Before we go further, I understand that the answer to the question of the noble Lord, Lord Greaves, is five departments.
As to Amendment No. 225ZC, we have already set out a clear timetable for taking forward these regulations. Our intention is to prepare the regulations following Royal Assent with a view to putting them in place by April 2008. I hope that is precise enough for the noble Lord, Lord Hanningfield, and that he will agree to withdraw the amendment.
Again, I thank the noble Baroness for her answer. This series of amendments seeks to clarify the situation on by-laws. We will have to reflect on the whole series after the Committee stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 131 [Fixed penalties for breach of byelaws]:
225ZD: Clause 131, page 89, line 5, insert—
“(1A) Where an authority has the power to introduce and enforce byelaws under section 236A of the Local Government Act 1972, it shall be exempt from this section.”
The noble Lord said: This amendment would ensure that the power of enforcement and types of enforcement rest with local authorities. The Minister in another place gave an entirely unsatisfactory response about which by-laws a local authority would be able to apply fixed penalty notices to.
It is not that I believe that all by-laws should be enforceable through fixed penalty notices and the large fines that they bring, but it seems reasonable to allow local authorities to decide which by-laws would be best enforced through the use of fixed penalty notices.
I am sure that the Minister will have a good basis in evidence to reassure me that this is not just another symptom of the Secretary of State restricting devolution. I look forward to her response. I beg to move.
Amendment No. 225ZD is essential to ensure that by-laws are enforced in line with established procedures for the issuing of fixed penalty notices, so that there is clarity and consistency across England and across the range of nuisance activities which can be subject to fixed penalties. There is already a list of such activities. We do not necessarily see that list being moved away from. I hope that Clause 131 provides that assurance and that the noble Lord will agree to withdraw this amendment.
225ZE: Clause 131, page 91, line 4, at end insert—
“(1A) But nothing in this section prevents a local authority from using its fixed penalty receipts for another purpose, where it would not be expedient to use the total fixed penalty receipts for the purposes of combating any relevant nuisance.”
The noble Lord said: Amendment No. 225ZE is a simple amendment which addresses what might potentially be a simple problem. In fact, I fear that the line numbers may have become confused as it should read “Page 91, line 44”. This amendment seeks to address potential ring-fencing in proposed new Section 237D entitled “Use of fixed penalty receipts”. I hope the amendment will make more sense in this context.
Proposed new Section 237D places a duty on local authorities to have regard to the desirability of spending money gathered from fines and fixed penalty notices on addressing the problems of each precise fixed penalty notice. In another place, the Minister insisted that that was not ring-fencing. Indeed, on the face of it, it does not look like compulsory ring-fencing. However, I would be interested to know how the words “have regard to” will be enforced. My amendment would ensure that, although authorities would have regard to the desirability of spending fine money on the offences from which the fine arose, where part of that money might usefully be spent on other priorities, local authorities should have that potential.
I have indicated my intention to oppose the Question that Clause 133 stand part of the Bill. I have done so to probe the Government’s thinking. How far reaching will the Secretary of State's guidance be and how constricting will it be on local authorities? Clause 133 makes clear, by inserting a new clause into the Local Government Act 1972, that local authorities, over and above all other detailed duties in this part, will be under a duty to have regard to the Secretary of State's guidance.
My initial reaction to that is simply “overkill”. I hope that it is. I absolutely agree with the Government that the authorities should not be able to use fine money as a stealth tax, but I believe in the need for reasonable leeway on this, so that they have some discretion in their affairs. I beg to move.
In answer to the concerns of the noble Lord, Lord Hanningfield, authorities have discretion. On Amendment No. 225ZE, Clause 132 already provides local authorities with discretion to use the receipts raised from fixed penalty fines for purposes other than enforcement of nuisances if they consider that appropriate. We are not trying to tie the hands of local authorities in this respect. I hope therefore that the noble Lord will agree to withdraw the amendment.
Perhaps while I am on my feet I can speak to the noble Lord’s opposition to Clause 133. That clause gives the Secretary of State power to issue guidance about the new procedures for making by-laws and the use of fixed penalties to enforce by-laws. That guidance will help to ensure consistency of standards and provide local authorities with a robust framework of guidance and support. Again, we are not trying to restrict local authorities through guidance; we are trying to lay out a map for consistent standards across the piece and hoping that that guidance will allow local authorities to have a robust framework of support.
I thank the Minister for her answer, which was a little more helpful than some previous answers. If I understood her correctly—perhaps she will correct me if I am wrong—local authorities could move money around. I thought that that was what she was suggesting. So they would not be as ring-fenced as has been suggested. That is probably a more helpful answer than some of the others. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 131 agreed to.
Clauses 132 and 133 agreed to.
Clause 134 [Community support officers etc]:
225A: Clause 134, page 94, line 11, leave out from beginning to first “the” in line 12
The noble Baroness said: I shall speak also to Amendments Nos. 225B, 225C and 225D—all of which are to the clause headed “Community support officers etc”—fighting the term “etc”.
I shall mention Amendment No. 225B first because it is slightly different. The amendment refers to a list to be published. We are adding the words,
“as amended from time to time”,
because it is to be published,
“in such a way as to bring it to the attention to members of the public”.
We are merely seeking clarification as to what is required there because, as we have heard, the list may be amended.
The other amendments are at the instigation of the Association of Police Chief Officers and the Association of Police Authorities which, among other things, have reservations about the effect this provision may have on chief officers and police authorities, particularly on police resources—we all know about the pressure on policing budgets. They are not clear why it is proposed to impose an obligation on chief officers to maintain and publish a list of by-laws when it is the local authority which is, as one might say, the owner of them. Again, there is a burden on police resources and an unnecessary piece of bureaucracy.
The third point concerns the enforcement of by-laws which again affect police resources. Ultimately, police authorities are responsible for these and they believe—and I agree with them—that together with chief officers, they should be named in the Bill as consultees on changes to local by-laws. I beg to move.
I am grateful to the noble Baroness, Lady Hamwee, for her amendment. It would be helpful if I explained the background to Clause 134. The aim of the clause is to extend to by-laws the procedures already in place in the Police Reform Act 2002 for publicising the enforcement arrangements which apply to specified low-level nuisances. This will enable local authorities and local police forces to work together to tackle local nuisances in a joined-up way.
These amendments would remove the role of the chief police officer in agreeing with the local authority the by-laws which can be enforced by Police Community Support Officers, as well as relieving him or her of the responsibility for maintaining and publicising the list of by-laws which can be enforced by these officers.
The procedures established in the Police Reform Act 2002 were agreed after careful consultation with all interested parties. The Association of Chief Police Officers is content with these provisions. As Police Community Support Officers are employed by chief police officers, it is right that they should retain direct oversight for the list of by-laws which can be enforced by these officers. These lists will be published so that the public are aware of them. I hope that, with that encouragement, noble Lords will agree to withdraw these amendments.
Perhaps we have received different briefings from different parts of the same organisation. I was not feeling very imaginative at this time of night, so I read out exactly what I was sent by that association. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 225B to 225D not moved.]
Clause 134 agreed to.
Clauses 135 and 136 agreed to.
Clause 137 [Parish councils and community councils etc not to be best value authorities]:
[Amendment No. 225DA not moved.]
Clause 137 agreed to.
Schedule 8 agreed to.
Clause 138 [Guidance about general best value duty]:
225E: Clause 138, page 96, line 15, after “duty),” insert “after subsection (2)(d) insert—
“(e) representatives of voluntary and non-statutory organisations delivering services in the area,”;(b)”
The noble Baroness said: I shall also speak to Amendment No. 225G in the group. Amendment No. 225E would add to Section 3 of the 1999 Act an obligation on an authority when dealing with its best value duty to consult additionally to those listed in that Act representatives of voluntary and non-statutory organisations delivering services in the area. It was a reference in the Bill to that clause that made me wonder whether these organisations should not be referred to specifically, as well as representations which all noble Lords will probably have received from the National Council for Voluntary Organisations. The Minister may tell me that mention of representatives of persons who appear to have an interest in the area covers voluntary organisations, and I suppose that I should hold my hand up again in that I must have sat through similar discussions and possibly even moved an amendment to this effect in 1999. I cannot remember. The role of the voluntary organisations, as we have been saying, is important and deserves recognition.
Amendment No. 225G would amend Clause 139 on the involvement of local representatives. I would be glad if the Government could explain their thinking. I propose taking out subsection (4), although I realise that I should have taken out subsection (3)(c) and (d) as well. However, I am sure that the Minister will have understood the drift of my question: who is to be specified by order?
In Committee in the Commons, Angela Smith, the Minister answering, said:
“The clause will provide the Secretary of State with powers to make additional exemptions from the duty using secondary legislation subject to the negative resolution procedure”.
I should understand better than I do the basis on which those powers will be used. The Commons were told that the clause,
“is a key plank in the Government’s commitment to ensuring greater engagement and empowerment of local communities”,
and that it will place,
“a duty on best value authorities … to involve representatives of local persons in the exercise of authority functions where appropriate”.
That does make me wonder about the persons appearing to the authority to have an interest in the area. I would have though that they were already there under the 1999 Act, but I obviously misread that. Angela Smith referred to the,
“leverage provided by the duties”.—[Official Report, Commons Local Government and Public Involvement in Health Bill Committee, 27/2/07; col. 398.]
That is very prescriptive language. It all seemed to turn a good into something doubtful, possibly even something bad, because of the top-down approach. I was confirmed in my apprehension by getting to the point in Hansard for the Commons Committee stage, where I learnt that the national performance indicators to be published to increase accountability are to include “citizen perspective indicators.” Yes, citizens are very important but, my goodness, what a piece of jargon. On the basis of the jargon alone, I beg to move that amendment.
Listening to my noble friend, I got the impression that perhaps she understood this rather better than I did. We are firmly in the morass and maze of “best value.” When first introduced, this was to be the new, simplified, liberating system to replace compulsory competitive tendering, which had been introduced by the previous Conservative Government and was generally disliked within local government. The Labour Party came to power promising to abolish CCT and replaced it with best value first in the 1999 Act and then in the 2000 Act which introduced the concept of community strategies, which we all now know and love.
I cannot understand what Clauses 138 and 139, and the rest of this part, will do or change that is not covered by the existing legislation. The proposed new Section 3A(1) of the 1999 Act refers to “involvement of local representatives”. There is already something about involving the people in the previous Acts. For example, the 2000 Act says that in preparing or modifying its community strategy, a local authority must consult and seek the participation of such persons as it considers appropriate, which seems a fairly straightforward statement in simple, easy-to-understand language. Then you get to the morass introduced by the second part, which says that it must have regard to any guidance for the time being issued by the Secretary of State. That is where immense complications come in.
Now we have this wording in the Bill. If anyone can tell me what this means, I would be very grateful. New Section 3A under Clause 139 states:
“Where a best value authority considers it appropriate for representatives of local persons (or of local persons of a particular description) to be involved in the exercise of any of its functions by being—
(a) provided with information about the exercise of the function,
(b) consulted about the exercise of the function, or
(c) involved in another way,
it must” —
“must” is a very strange word, there—
“take such steps as it considers appropriate to secure that such representatives are involved in the exercise of the function in that way”.
That is either a revolutionary statement or it means nothing; I think it means nothing. What is the purpose of putting words like that into legislation? All it says is that a council, when it feels like it, can tell people what is going on, ask them what they think about it and involve them in some way. They can have a survey, a questionnaire, a citizen’s panel, or invite them to meetings. When councils want to do this, they already do so. There is no difficulty about it. There are no legislative provisions which say that you cannot do this. So why do we need this incredibly convoluted, complex, new section, which, if it means anything at all, simply means that you can do things you have been doing all the time?
Clause 139(5) is the usual stuff. It states:
“In deciding how to fulfil its duties under subsection (1)”—
its duties are only when it considers it appropriate—
“an authority must have regard to any guidance issued by the Secretary of State”.
That takes us back to Clause 138, which says, in effect, that the Secretary of State can issue instructions—it is called guidance, but no one goes against it—to councils to do anything he wants them to do, in any way and at any time.
The whole thing is incredibly centralist. It is part and parcel of the system in which central government, particularly through their regional offices in this case, has its very close grips on local authorities. All this talk about devolution turns out not to mean very much in practice when this kind of legislation is passed. I am very cynical about the whole thing, which is why I have put down these amendments. Why does the Bill not just say, “Consult who you want or consult everyone who wishes to be consulted”?
I shall give an example of how this will work out in practice. Pendle Council, of which I am a member, is in the fairly early stages of consulting people under the 1999 and 2000 legislation on the community strategy, which is now suddenly called the “sustainable community strategy”. I think that it is the same thing. I do not know where the word “sustainable” appeared, but it does not appear in legislation. We have to call it sustainable now, which is fine, and we do not mind doing so. At the same time, we have the horrifically complex, new planning legislation, which went through your Lordships' House about two years ago, setting up the local development framework, so the two go side by side.
Instruction from regional offices—that is, the Secretary of State—is very prescriptive about how you have to consult, otherwise it is not approved. In effect, the consultation taking place now is a blank-sheet consultation. People are being asked, “What do you think about the future of Pendle? What would you like to see in Pendle and what kind of place would you like it to be?”. This overlaps with all sorts of other consultation that has taken place. There is consultation fatigue, so very few people will respond because they do not believe that that kind of consultation has any meaning. It is counterproductive because it brings the process of consultation into disrepute.
I speak as someone who thinks that public consultation and involvement are very important. I argued that a long time ago when organisations such as the Labour Party thought it was all nonsense. Because the consultation is open-ended, it is unrealistic and meaningless. People might come along and say, “We would like 5,000 new houses built”, or “We would like a university”, or “We would like the Leeds and Liverpool Canal turned into a continuous marina”. However, they might say, “We want no more development at all”. For consultation to be relevant and sensible, it has to be based on practical things. If people ask sensible questions about practical situations in the real world, they will come up with sensible answers and will tell you what they think. You may or may not agree with them, but there will be sensible consultation. Open-ended consultation is being forced on local authorities by the regional offices and the Secretary of State. I fear that this part of the Bill is simply more of the same. It is written by people who have not the slightest idea of what consultation and involvement of people is like on the ground in the real world.
I hesitate to use the words of John Prescott about teeny-boppers in Downing Street, but one suspects that a lot of this legislation comes from such people.
I do not know whether I classify myself as a teeny-bopper in the House of Lords but I am very much behind Clause 139. I, too, have been committed to and involved in promoting the concept of public involvement, particularly in health. Sometimes listening to the noble Lord’s interpretation of the Bill, I wonder whether we are reading the same document.
Let me speak to the amendments. The noble Baroness, Lady Hamwee, raised a particular concern about the voluntary sector and I hope that my comments will go some way to providing her and the voluntary sector with some reassurance. Amendments Nos. 225E and 225EA would amend Section 3(2) of the Local Government Act 1999, which states that authorities must consult representatives of persons who pay local taxes, levies or business rates, those who use council services and anybody else with an interest in best value. This includes citizens, electors, residents and local councillors. These amendments would go beyond this and make it mandatory for local authorities to consult all people and councillors. We believe that it is unrealistic to expect local authorities to involve all local people. Such a duty would be hugely burdensome in time and money. Also, this amendment would only cover how an authority consults on its duty of best value. The new duty we are proposing in Clause 139 goes much wider.
The clause places a new duty on best value authorities in England, except police authorities. It is a very significant plank of this legislation. It requires authorities to inform, consult and/or involve representatives of local persons in the exercise of the authority’s functions as appropriate. By “representatives of local persons” we mean that an authority must involve a cross-section of the population affected by or interested in a particular service. Who the authority involves will vary according to the type of authority, policy or service area. However, the current drafting means authorities will be required to consider when and how local councillors, community spokespeople and—of importance to this discussion—voluntary groups should be engaged. The statutory guidance will reinforce this message. Noble Lords will have received a statement of intent setting out the scope of the statutory guidance with a clear expectation that authorities should engage local voluntary groups and community leaders where appropriate, as well as reaching out to individual citizens. The guidance will also emphasise the voluntary sector and community leaders’ role in advocating on behalf of the most vulnerable and marginalised in society—an extremely key area—and helping such groups to engage. However, it would not be right to require authorities to involve specific groups such as voluntary and community organisations in every given circumstance. There may be instances where it would be inappropriate to involve certain groups and we should give authorities the power to make this decision based on the needs and characteristics of their local area.
The noble Baroness, Lady Hamwee, asked me to explain further the question of exemptions and I will do my best to help her. Amendments Nos. 225F and 225G affect the Secretary of State’s ability to create exemptions from the duty to involve. The first amendment would remove the order-making power and the second would extend the scope of this power by removing the constraints placed upon the extent of the order. The Secretary of State may need to provide clarity on when and how authorities should not involve citizens and communities over and above what can be achieved with guidance. This provision ensures that there can be a clear answer to whether a matter is outside the scope of the duty. Without the provision, the scope could be left unclear or left to the courts to decide. It is envisaged that this exemption would only rarely be used. For example, there could be an exemption under the new duty. In the new world, when this power comes into force, you could have a situation where the duty creates an expectation that individual or personal matters are seen as an area for consultation, such as in adoption cases or staff disciplinary proceedings. It is important that if there is any ambiguity in an area involving a matter of personal or individual concern, the Secretary of State is able to create an exemption. We can imagine a situation where a body wanted to consult the community on the development of the policy around an issue like adoption, but we would not want any involvement of individuals in the execution of that policy. It is also possible that in the future, the functions of individual best value authorities might change, and therefore it may become appropriate to exempt those authorities or some of their functions from the duty. However, as I have said, it is expected that this provision would be very rarely used.
I turn briefly to the meaning and importance of Clauses 138 and 139. The noble Lord, Lord Greaves, was very sceptical, although I see them as forming an important, interrelated part of the Bill. Clause 138 is needed because statutory guidance on best value is provided using the powers under Sections 3(4), 5(5) and 6(4) of the 1999 Act. With the repeal of Sections 5 and 6 of the 1999 Act, only the power to issue guidance on how authorities consult representatives of local people will remain, and we believe that that is far too narrow. Clause 138 widens the scope of guidance by allowing the Secretary of State to issue guidance about a broader range of matters related to how authorities should fulfil their general duty of best value.
Clause 139 is needed to ensure that people across the country are given the opportunity to have their say and get involved in local services and policies. Evidence from both the UK and overseas shows that where citizens and communities are involved, services improve and better reflect the needs of local users, resulting in higher levels of user satisfaction. However, Comprehensive Performance Assessment 2006 found that while,
“council approaches to consultation and engagement are at different stages of development … councils need to do more to engage greater involvement of users in … services”.
It also found that,
“engaging and supporting diverse communities is less well developed”.
So not everything is completely bright and rosy in the garden and we need to do more. This is a very important clause in that. The duty also provides an important counterbalance to the reduction in top-down controls which this Bill is also all about in the new performance framework. With that, I hope that the noble Lord will consider withdrawing his amendment.
I do not want to say very much because I think that there is a total lack of communication here. The Minister has talked about a “new world”, which has Orwellian overtones, or that is how it felt to me. I do not take any lessons from this Government about public involvement, grass roots politics and all the rest of it. I could talk about that for ever and a day, and while I do not claim that where I have been involved it has been perfect, it has happened.
Everything is not bright and rosy, but this is a top-down provision that will cause more problems and make the position more difficult. We cannot get local democratic involvement and participation by setting it out in detailed national legislation. It must be done differently. I fear that because authorities are going to have to spend a lot of time, energy, resources and money doing exactly what the Government say, they will not be able to do what is useful.
My reaction is rather the same. As I heard it, we were told that this measure would enable much better involvement at local level and would take away prescription. However, it seems to be imposing it. Perhaps it will become clear when I read it during what normal people would regard as normal working hours. I wonder about trying to deal sensibly with legislation at this hour, but the situation is better than it was a few years ago. I shall read what the noble Baroness said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 138 agreed to.
Clause 139 [Involvement of local representatives]:
[Amendments Nos. 225EA to 225G not moved.]
Clause 139 agreed to.
Clauses 140 to 145 agreed to.
Schedule 9 agreed to.
Clauses 146 to 149 agreed to.
Schedule 11 agreed to.
Clause 150 [Interaction of the Audit Commission with other authorities]:
On Question, Whether Clause 150 shall stand part of the Bill?
I am not quite ground down. I shall speak to this Question just to say something, if for no other reason. This is a probing measure intended to follow up the debate in Commons Committee. The Minister in the Commons said that the Government were still consulting on potential conflicts of interest regarding the interaction of the Audit Commission with other authorities, and,
“the Audit Commission’s powers to offer improvement advice”.—[Official Report, Commons, Local Government and Public Involvement in Health Bill Committee, 27/2/07; col. 401.]
How far has that consultation gone? How will the powers in Clause 150 sit with any potential future changes?
226: Clause 152, page 106, line 1, leave out “inspector” and insert “auditor”
The noble Baroness said: I will try not to weary the Committee with the length of this speaking note. The amendment corrects a typing error in Clause 152(1)(b). Proposed new Section (4B) should read: “In connection with inspecting such a document, an auditor”—not an “inspector”. I hope that noble Lords are not going to give me any trouble on the amendment. I beg to move.
On Question, amendment agreed to.
Clause 152, as amended, agreed to.
Clauses 153 and 154 agreed to.
Clause 155 [Studies at request of particular bodies]:
On Question, Whether Clause 155 shall stand part of the Bill?
While I am speaking, the noble Baroness, Lady Hanham, might be able to work out how to make her points on Clause 152, because clearly things moved slightly too fast and she was trying to get in.
Clause 155 is short but significant. The Audit Commission Act 1998 is to be amended so as to take away from the Audit Commission its power to undertake studies at the request of bodies subject to audit and studies for functional bodies at the request of the Greater London Authority.
I am aware of the dangers of being too anecdotal, but when I first came into local government the whole area of performance review and what the Audit Commission and indeed the district auditor had to say was regarded in a rather different way from the way it is now. It was all very positive and helpful—or a lot of it was. The opportunity for the Audit Commission to undertake these studies is important. I understand from the debate in the Commons that only about 0.5 per cent of its turnover currently arises from these special studies. As my honourable friend the Member for Hazel Grove pointed out, the Bill will no doubt result in more joint commissioning of services. The studies subject to this clause could be potentially useful there.
The problem seems to be that there is a potential conflict of interest. I find that difficult. The Minister said that the same body is offering improvement, support and inspection. If that is so, then it is only in connection with these studies, which, as I said, are potentially very valuable. If there is a bigger problem over conflict of interest, I think that the thing needs to be addressed in the round, not by taking away that provision. The Minister said that, having heard the arguments, the Government would reflect on the concerns that had been expressed, rethink and introduce proposals later to the Committee or to the House to address this matter. It may be that proposals have made their way into the Bill that I have not understood; I am perfectly willing to accept that that might be the case. If so, perhaps the Minister can tell me where they are and, if not, perhaps she can tell me where the thinking that the Government undertook to do has got to.
I agree with the noble Baroness that this is an important additional power for the Audit Commission to have. Essentially, our initial view was that there was a potential for conflict of interest, with an inspectorate offering improvement advice, and a value-for-money issue, with different publicly funded bodies competing for the same work. However, as the noble Baroness said, we listened to the representations made during the passage of the Bill and we discussed the matter at length with the commission. We were reassured when we did so that there had never been any accusation of conflict of interest and that there genuinely were advantages for local authorities in having a wider choice of improvement support agencies. We concluded that the commission should continue to be able to respond to requests for help using the new advice and assistance power.
Clause 155 repeals Sections 35 and 35A of the Audit Commission Act 1998, which allow the commission to undertake fee-paid improvement studies of certain bodies at their request, or in some cases at the request of the Mayor of London. The clause is fine, as it seeks to tidy up legislation, since the power is now obsolete, having been superseded by the new power for the commission to provide advice and assistance to a wide range of public authorities, as set out in paragraph 9 of Schedule 12. There is a potential overlap if that power were to remain. The new powers are much broader than the powers in Sections 35 and 35A of the Audit Commission Act 1998 and they enable the Audit Commission to advise any public bodies, including those outside the UK.
We agreed to reconsider our policy and we have done so. We now consider that English local authorities should be able to take advantage of this service and they will be able to do so. Those changes have been made with the agreement of the Audit Commission.
The fact that the Audit Commission agrees to something does not necessarily mean that it is going in the right direction. However, I am glad to hear what the noble Baroness said. It is a pity that the balance between the main part of the Bill and the schedule seems to lend greater weight to the repeal than it does to the new, wider power. That is a matter of style. I am happy to let the clause stay.
Clause 155 agreed to.
Clauses 156 and 157 agreed to.
Clause 158 [Reports on English local authorities]:
[Amendment No. 226ZA not moved.]
Clause 158 agreed to.
[Amendment No. 226A not moved.]
Clauses 159 to 164 agreed to.
Clause 165 [Disclosure of information obtained by the Audit Commission or an auditor]:
226AA: Clause 165, page 111, line 34, at end insert—
“( ) Any information disclosed under this section must be destroyed by the receiving party no less than six months after the information is disclosed.”
The noble Baroness said: Again, this is a probing amendment, but it is essential to bring into the debate the adequate safeguards that are to be put in place to protect the information that can be disclosed in audit processes. Amendment No. 226AA would ensure that any information disclosed under the section would be destroyed within six months. Amendment No. 226AB covers the situation where the publication would be likely to be prejudicial to the effective safeguarding of the personal details of any individual. It is important that there is a duty on the Audit Commission to safeguard such information. I beg to move.
Amendment No. 226AA seeks an additional requirement on persons authorised under Clause 165 to receive information, to destroy that information in no fewer than six months after the information has been disclosed. Amendment No. 226AB seeks an addition to Clause 166 to ensure that personal information is safeguarded from publication.
The problem with Amendment No. 226AA is that it goes in the opposite direction to improving the transparency of public bodies. I am sure we all think that the public ought to be entitled to see information obtained by the Audit Commission about public bodies. By definition, the audit of public bodies ought to be transparent. People who control public money ought to be held to account. If public bodies act unlawfully, or persons in official positions in public bodies do not account for public money properly, I am not sure why the details should be destroyed after six months. The amendment would also create practical problems for organisations or individuals commissioned to conduct a study or review lasting more than six months, because the information provided would no longer be valid for use. I worry about this amendment, because it would make the process of disclosure and the use of information onerous and bureaucratic.
I turn to Amendment No. 226AB. Clause 166 as it stands will allow the Audit Commission to publish any information provided that the publication will not prejudice the effective performance of its functions, or those of an auditor. Section 51 of the Audit Commission Act 1998 currently restricts the type of information the commission can publish. Since the commencement of the Freedom of Information Act 2000, individuals can request information from the commission, which it is happy to provide. But this clause makes it clear that the commission can publish any information except where publication may prejudice its functions, or those of an auditor. The main purpose of the clause is to bring more transparency to information about public bodies. It is very unlikely that the Audit Commission would release personal details in an irresponsible way. It would certainly damage its reputation by indicating that it was acting irresponsibly. I consider that the noble Baroness has moved the amendments in a responsible and genuine way. But the Data Protection Act 1998 also prevents the Audit Commission from releasing and publishing personal data in a report. For those three reasons, I hope that she will feel that there is sufficient protection to allay the concerns that she raised.
I thank the Minister for that reply. At this hour of the night, I am not going to say anything more. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 165 agreed to.
Clause 166 [Publication of information by the Audit Commission]:
[Amendment No. 226AB not moved.]
Clause 166 agreed to.
Clauses 167 to 172 agreed to.
Clause 173 [Authorities subject to investigation]:
226B: Clause 173, page 117, line 20, leave out “paragraphs (b) and (c)” and insert “paragraph (b)”
The noble Baroness said: It is nearly the witching hour; I was hoping that the Deputy Chairman of Committees might have gone through those clauses and amendments a little more slowly. Bizarrely, Amendment No. 226B is placed at the beginning of more than two rows of government amendments. The amendment brings us to Clause 173, in the part of the Bill dealing with the Local Government Ombudsman. Having gone round in circles trying to understand why a couple of references in the Local Government Act 1974 were being removed, I thought—lamely, perhaps—that the easiest thing was to table an amendment and see what the Government have to say about it. I beg to move.
I hope that I can enlighten the noble Baroness. Amendments Nos. 227 to 235 provide some fine-tuning to Clauses 176 and 178 further to clarify the local commissioners’ powers relating to the publication of information on an anonymised basis and to make recommendations in their reports as to how local authorities should resolve instances of maladministration or service failure. The changes further clarify the jurisdiction of the local commissioners and avert any unintended operational difficulties for the local commissioners.
Amendments Nos. 273 to 279 and 282 to 286 are necessary to complement the Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007, which facilitates joint working between the parliamentary, health and local commissioners.
As to Amendment No. 226B, it may be helpful if I first explain the general background to Clause 173. This clause is intended to make it clear that the local commissioners’ jurisdiction extends to the investigation of maladministration or service failure where local authority functions are exercised under partnership arrangements. By way of further clarification in this respect, we have also taken the opportunity to reformulate the wording of Section 25 of the Local Government Act 1974 on the “relevant matters” falling with the commissioners’ jurisdiction, as this has been subject to many amendments over the years and has consequently become somewhat difficult to decipher. The effect of this amendment would be to reverse our proposed repeal of subsection (4A)(c) of Section 25 of the Local Government Act 1974, which provides for the Greater London Authority to be responsible to the Local Government Ombudsman for actions of any body or person,
“exercising any functions on behalf of the GLA”.
We have proposed the repeal of this subsection because we are replacing it with a clearer formulation more generally, whereby any authority that comes within the local commissioners’ jurisdiction is responsible for the actions of,
“any authority exercising the functions of the authority”.
Our repeal does not alter the position on the local commissioners’ jurisdiction with regard to functions exercised by the GLA. I hope that that has enlightened the noble Baroness and that she will agree to withdraw the amendment.
227: Clause 176, page 120, line 40, at end insert—
“(1ZA) A Local Commissioner may include in a report on a matter under subsection (1) any recommendations that he could include in a further report on the matter by virtue of section 31(2A) to (2BA).”
228: Clause 176, page 121, line 21, at end insert—
“( ) Before subsection (3) insert—
“(2B) Subsections (3) to (8) apply in the case of a report under subsection (1).”.”
229: Clause 176, page 121, line 23, leave out paragraph (a)
230: Clause 176, page 121, line 27, leave out subsections (6) and (7)
On Question, amendments agreed to.
Clause 176, as amended, agreed to.
Clause 177 agreed to.
Clause 178 [Publication of reports etc by Commissioners]:
231: Clause 178, page 122, line 27, after “of” insert “all or part of”
232: Clause 178, page 122, line 35, after “of” insert “all or part of”
233: Clause 178, page 122, line 38, leave out “a summary mentioned in subsection (1)(d) of this section” and insert “—
(a) any part of a statement under section 30, and (b) any part of a summary of a matter,that is published, or a copy of which is supplied, under this section”
234: Clause 178, page 122, line 39, leave out “or statement”
235: Clause 178, page 122, line 40, leave out “that section” and insert “section 30”
On Question, amendments agreed to.
Clause 178, as amended, agreed to.
Clauses 179 to 183 agreed to.