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Lords Chamber

Volume 695: debated on Monday 22 October 2007

House of Lords

Monday, 22 October 2007.

The House met at half-past two: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Rochester.

Death of a Member

My Lords, I regret to inform the House of the death of Lord Oliver of Aylmerton, on 17 October. On behalf of the House, I extend our condolences to his family and friends.

Personal Statement: Lord Davies of Oldham

My Lords, with permission, I should like to make a short personal Statement. On Monday last, 15 October, I was asked a question on corporation tax by the noble Baroness, Lady Noakes. In reply—Hansard at col. 523—I said that the reduction in the rate of corporation tax makes the British rate one of the lowest in the OECD. I had intended to say that it is one of the lowest in the G7. I apologise unreservedly to the House for that mistake.

Energy: Renewable Technologies

asked Her Majesty’s Government:

What progress has been made in developing renewable energy policies other than through the European Emissions Trading Scheme.

My Lords, the Government have made significant progress in developing renewable energy policies. As a result of policies outlined in the energy White Paper, the generation of renewable electricity in the UK is forecast to treble by 2015. The renewable transport fuel obligation aims at ensuring that biofuels comprise 5 per cent of total sales of road transport fuel by 2010. Once individual member states’ contributions to the EU’s 2020 target have been agreed, we will bring forward appropriate measures beyond those set out in the White Paper to make our contribution to meeting those targets.

My Lords, I thank the Minister for that Answer, which was reasonably satisfactory. He will be aware that the DTI report on draft options on renewable energy cast some doubt on whether the Government would be able to achieve 20 per cent of energy supply from renewables by 2020. The report suggested using the European Emissions Trading Scheme or statistical manipulation to achieve this very challenging target. That seems a rather dubious way of achieving your targets. Would the Government care to expand on how we will actually get to it?

My Lords, the noble Lord is right that the 2020 target is challenging. We recognise that we will require additional measures and possibly additional legislation in order to hit it. That is why we are preparing for the possibility of legislation for 2009 in good time for us to implement the measures necessary. At this stage, we have not determined the strategy for 2020. The House will recognise that we have quite enough on our plate to deal with the targets for 2010 and 2015. Although progress at present is encouraging, I do not think that the House would fail to recognise how challenging these targets are.

My Lords, will my noble friend ensure that the contribution that tidal power can make to the generation of electricity is taken fully into account? Is he aware that in the 100 square miles around the island of Alderney in the Channel Islands, there is reckoned to be enough tidal power to provide electricity equivalent to that of two Sizewell B power stations? Will he look at that experiment, which will start next year, and give every encouragement to the islanders to ensure that their electricity can be landed in the United Kingdom?

My Lords, the Government are certainly interested in tidal power and tidal barrages. That is why we are examining closely the concept of the Severn barrage scheme, which, if it proves to be successful and economic, could contribute as much as 5 per cent of UK electricity. The House will recognise that although we have had a favourable assessment by the Sustainable Development Commission on the feasibility of that scheme, which the Minister responded to positively in September, there is still a great deal to be done. I assure my noble friend that electricity suppliers will be keen to obtain their electricity from renewable sources, and if Alderney develops its tidal barrier scheme more rapidly than anywhere else and they can buy from Alderney, it will be up to the electricity companies to do so.

My Lords, the Minister said that to meet our renewables targets we have to develop things such as the Severn barrage. Does he agree that without massive government commitment behind this at a very early stage, there is no way that the Severn barrage will be built by 2020, especially if he is talking about looking at further studies into its viability?

My Lords, the Government have to look at the economics of any potential strategy. The noble Lord will recognise that the Minister made absolutely clear that he very much welcomed the report which indicated that the technology was possible and that the Severn barrage scheme could make a very substantial contribution indeed. Of course examination of costs, the resources to be put into it and who should put in those resources, are all to be evaluated. The noble Lord will recognise that we had the report only in September, so it is a little premature for us to have cut and dried responses to his question at this stage.

My Lords, the Government are going to great lengths to introduce renewable energy as part of their campaign to combat global warming. Does the Minister agree with David Bellamy in the Times today that temperatures have not gone up since 1998?

My Lords, I have not looked with scientific rigour at that contribution. The noble Lord will recognise that David Bellamy is a somewhat controversial figure in this debate, although an articulate and useful one in prodding everyone to examine their analyses. But there is no serious scientific position in the world that does not recognise that global warming is both a development and a threat to mankind.

My Lords, will my noble friend acknowledge that the economics of the Severn barrage have been transformed favourably in the past 10 to 15 years with a fall in the cost of long-term capital and a very significant increase in the price of energy? The project should be manageable with far less subsidy than might once have been contemplated.

My Lords, I welcome that contribution. The Government are indicating that there has been a step forward with regard to the Severn barrage development and therefore we are about the business of examining carefully the costs involved and the viability of this project. As I have indicated to the House, there is not the slightest doubt that if it proved to be economically viable it would be a very significant contributor of electricity. However, we had the report from the Sustainable Development Commission only on 25 September. The House will recognise that the Government need to draw breath before they can confirm that they will commit to this important development.

Flooding

asked Her Majesty’s Government:

Whether they will bring forward the increased spending allocations for flood defences from 2010-11 to 2008-09.

My Lords, annual government spending on flood and coastal erosion risk management will rise to a minimum of £650 million in 2008-09, £700 million in 2009-10 and £800 million by 2010-11. These figures are the minimum that we propose to spend in each of the coming years, but it is too early to determine whether these will be the final allocations or whether it will be possible to go further.

My Lords, I thank the Minister for that reply. I would like to declare an interest as chairman and chief executive of an insurance broking organisation. My industry has suffered losses approaching £3 billion following the recent flood damage. Will the Minister ask the Government to think again about this, otherwise I am afraid that there could be further problems with regard to the provision of insurance cover?

My Lords, I can say only that I have exactly the same brief as I used last Tuesday. The figures and, indeed, the Question, are exactly the same, and the answer regarding insurance companies is also exactly the same. We are working with the Association of British Insurers and we are meeting the statement of principles. Indeed, the figure that I have given for 2010-11 is more than the Association of British Insurers was asking for before the recent floods. These are minimum figures, but there is some doubt about whether more can be spent in the first two years. Just chucking money at this will not necessarily solve it if you do not get value for money. We have a planned increase in expenditure and it is being done in line with the insurance industry.

My Lords, if the Minister is talking about value for money, does he recall a Written Answer that he gave me in the summer to the effect that the United Kingdom has spent some £63.8 billion on meeting unnecessary water purification directives from Europe? Does he not agree that, if we had not wasted that money, he might be in a better position to look after our flood defences now?

My Lords, purifying water is always a good thing. Since 1996-97, we have spent some £4.5 billion across England on flood risk management and flood defences, so I do not think that I have to be at all defensive with the noble Lord.

My Lords, has any thought been given to making grants available to people who have suffered flood damage to build their own flood defences in the same way that the Government give grants for loft insulation and things of that type?

My Lords, between 2005 and 2008, around 100,000 dwellings in this country are going to get better flood defences as part of the programme, but there are some areas where it is incredibly difficult to do this on a grand scale. Individual schemes are about, but I do not know whether there are grants as such. Programmes are in place, particularly to defend the infrastructure. Some 5,000 infrastructure projects to provide better defences are being surveyed at the moment. However, as I say, there are some areas where this is difficult to do and a one-off solution may be required.

My Lords, given the floods that took place earlier this year in the south Midlands and Yorkshire, when will the Environment Agency provide the Government with a comprehensive report covering what happened and how we might come up with a detailed strategy to make sure, in the most cost-efficient way, that those types of floods do not happen again? We need a factual look at what happened and how we can prevent this in the future.

My Lords, an independent review chaired by Sir Michael Pitt is going on at the moment, but I do not have the date on which the report on the lessons learnt from the flooding is due. While I do not know about all areas of the country, I should say that in the south Midlands over six inches of rain fell in less than 24 hours. With the best will in the world, our flood defences and the water courses would not have been able to deal with that. It happened in the middle of the growing season and caused considerable damage. More damage was caused to land in the south Midlands and more damage was caused to property in the north of England. The report is independent; people are giving evidence and we look forward to receiving it in due course.

My Lords, one of the features of the summer floods was the vulnerability of key public services, such as electricity, water and sewerage. Can the Minister assure us that the protection of these vital installations is being given the highest priority and will he say who is paying for the work?

My Lords, I am extremely grateful for that question because it gives me the chance for the first time to pay tribute to the people who protected that sub-power station at Walham. The fact is that all we ever saw on television—this is not to knock them at all—were the Army and the police. But it was Environment Agency staff who got the equipment because they spotted what was happening at that station a few hours earlier; it was they who got stuff from a store that was used elsewhere and worked their socks off. They were, of course, assisted by the Army in completing the exercise to protect the sub-power station. I know that thanks are not always given, because the Environment Agency is not classed as an emergency service, but it certainly was one in protecting that sub-power station at Walham.

As I said in answer to a question at the end of last week, the Environment Agency has identified 5,000 infrastructure sites in England and Wales as having a probability of flooding greater than one in 75. I will not list them all, but they include sewage works, schools, health centres and power stations. Work is going on to assess these. It is for the users and owners of those properties to ensure that they have adequate flood defences—that is their prime responsibility—but the Environment Agency is overseeing this because we now have the list.

My Lords, did the Minister read the reports in this weekend’s newspapers that the projections show that the population of this country will be 75 million by 2051? Many, many more houses and other infrastructure buildings will be required if that happens. Will he assure me that the Government will resist all the additional pressures to build on flood plains?

Well, yes, my Lords. I am not going to comment on the potential increase in the population either of the planet or of the country, because that is a sensitive matter, although frankly it is not discussed enough. However, the issue raised by the noble Lord is important. Unlike two or three years ago, the Environment Agency is now a statutory consultee and, again unlike a couple of years ago, if the Environment Agency says that a local authority is about to give planning permission on a flood plain and points to risk, Ministers now have the power to call in such planning applications.

Prisons: Spending

asked Her Majesty’s Government:

What are the main changes being made in the work of prisons and young offender institutions to enable the Prison Service to keep within its budget.

My Lords, the prison budget for the next three years has not yet been confirmed but, given the CSR settlement to the Ministry of Justice, all areas of the department will need to ensure that they use their budgets effectively. The ministry is reviewing options for prison budgets at the moment. The review of prisons by the noble Lord, Lord Carter of Coles, will be a crucial input into those discussions.

My Lords, I thank the Minister for that somewhat helpful reply. Does he accept that the prisons are already struggling to cope under the pressure of overcrowding? As reports by the Chief Inspector of Prisons show, the number of prisoners seems set to rise, and this larger number will have to be looked after with less money. It is suggested that “less money” will be of the order of cuts of 3 per cent per year. Does the Minister accept that, if that is the case, something has to go, and that that something will be purposeful activity, rehabilitation, visits and education work? Will he therefore tell the House what the reduction will be in the hours of purposeful activity per prisoner per week next year, compared with this year, if the 3 per cent cut that has been suggested goes ahead?

My Lords, the overall settlement for the Ministry of Justice certainly assumes that the department will be able to achieve a 3 per cent value-for-money saving. Clearly, however, there is a lot of work to be done to look at the implications of that for various aspects of the department’s budget. So far as the pressures on the Prison Service are concerned, I do of course acknowledge that this is a very challenging time for the Prison Service. Many aspects of the budget are being discussed at the moment, but I assure noble Lords that the department will do its utmost to ensure that vital programmes in education and the prevention of reoffending are indeed maintained.

My Lords, how much will be saved from the treatment of young offenders under the age of 18 with mental health problems or learning disabilities by the purchase of batons to beat them with, and is the Minister not ashamed of that policy announced at the weekend?

My Lords, as the noble Lord knows, it is the policy of the Youth Justice Board and the Prison Service that batons are not carried in juvenile establishments. A review of the current policy is being undertaken to ensure that procedures remain appropriate, although the Youth Justice Board has not indicated any desire that this policy be changed at present. It would be better to await the outcome of the review.

My Lords, will my noble friend try his best to ensure that prison education facilities and programmes are not cut? Many of the young offenders can neither read nor write. If they are literate they have a better chance of getting a job, which is essential as 70 per cent of them reoffend.

My Lords, I completely agree with my noble friend. However, spending on offender learning has increased considerably, from £57 million in 2001-02 to £164 million in 2007-08. It remains a priority.

My Lords, I really think it might be my turn. The Minister will know from the reports of HM Chief Inspector of Prisons that prisoners quite commonly spend no fewer than 20 hours locked up in their cells at present and that throughout the Prison Service they can no longer count on having even one hour of exercise in the open air. Given that pressure on the budget must be reflected in manpower resources, how will the Government live up to the duty of humane care for prisoners in the future?

My Lords, it is fair to say that there has been an increase in the workforce available to the Prison Service. In achieving the budgetary settlement, it is important that everything is done to ensure that core services, including those referred to by the noble Lord, are maintained. That is why a programme of work has been undertaken to identify the less essential services or administration systems to help meet the overall achievement of the budget.

My Lords, does the Minister agree that the acute congestion in custodial institutions is now of such a nature that no programme of new building will ever achieve the purpose of solving that problem? Will he grasp that nettle by setting up a deep-seated and comprehensive inquiry into the conundrum of why it is that the British community, which is reasonably law abiding, incarcerates more children, young people and adults per 100,000 than any other country in Europe?

My Lords, I do not agree entirely with the comments made by the noble Lord. The Government have announced an expansion in the number of prison places, which will take place over the next few years. Our prisons are full because more serious offenders have been caught and put in prison. At the same time, it is right that we also use community sentencing and put a lot of our focus into preventing reoffending. The Carter review, which is due for publication shortly, will examine a number of matters raised by noble Lords, and we will be able to have these important debates informed by the work of the noble Lord, Lord Carter.

My Lords, the noble Lord did not answer the incredibly important question which has just been asked. Why do we have in prison a much larger percentage of people than any other country in Europe other than the Turks? Prison has three purposes: retribution, deterrence and rehabilitation—of which by far the most important is rehabilitation. One person who is rehabilitated and does not go back to prison saves the country an enormous amount of money. Surely, the Government should concentrate on that.

My Lords, of course. We have seen a reduction in reoffending, which is why more resources are being put into programmes to encourage prisoners not to reoffend. Surely it is also right to point out that prisons have filled up because people convicted of serious and dangerous crimes have been put in prison for longer sentences. That is entirely justifiable and what the British public expect.

Prime Minister: Dissolution of Parliament

asked Her Majesty’s Government:

When they will give effect to their pledge to consult Parliament about whether the Prime Minister should be required to seek the approval of the House of Commons before asking the monarch for a dissolution.

My Lords, on Wednesday, 10 October 2007, my right honourable friend the Leader of the House of Commons put to the Modernisation Committee of that House the proposal that it should look at the issues around recall and dissolution. I am pleased that the committee has agreed to inquire into this issue. The Government look forward to considering the committee’s conclusions in due course.

My Lords, I thank the Leader of the House for that reply. I must declare a financial interest: I lost money at the bookies on the date of the next general election. Considering that, perhaps she could think about suggesting to the Prime Minister that he revisit the idea of having fixed-term Parliaments. The Prime Minister said that the reason why he did not call an election—the reason why I lost that money—was that he wanted to fulfil his “vision” for a Parliament. If he had a fixed-term Parliament perhaps he would not need to worry about snap elections and could have five years to fulfil that vision.

My Lords, I have heard many reasons given for fixed-term Parliaments, but making sure that the noble Lord is not relieved of his money is not one which I expected to hear. I commiserate with him, but he will also recall that the Prime Minister was very careful about this. He spoke only when he had made up his mind and made the decision, which was the right one.

My Lords, surely the Minister agrees that making dissolution conditional on a vote in the House of Commons would, if it was on a whipped vote, be a fairly meaningless gesture. I should like to see something happen, but if it was on a whipped vote, I do not see that it would be other than a mere exercise in demonstrating one’s wish to do something worth while without achieving very much.

My Lords, the noble Lord, Lord Waddington, raises an important issue which the Modernisation Committee may well wish to take into account; namely, the nature of the vote that could be taken in another place. I am sure that the considerations raised by the noble Lord will be part of the committee’s deliberations.

My Lords, is it not inherently unfair that one of the participants in the electoral race, namely the Prime Minister, should be responsible for firing—or, as the case may be, not firing—the starting gun?

My Lords, if one is the Prime Minister, one is the Prime Minister, and alongside that role goes the ability to call an election at an appropriate moment. If the noble Lord’s party were in power, it would have that opportunity too.

My Lords, is my noble friend aware that every Opposition, certainly within my living memory, have always wished to curtail the power of the Prime Minister to call an election at a time of his choosing? Is she also aware that every Government, at least during my political life, have always resisted that temptation? Can she assure me that this Government will do precisely that?

My Lords, I do not sense within this Government any desire to change the position. Of course I entirely agree with my noble friend’s comments.

My Lords, is it not ironic that the Liberals—the heirs to the great Whigs of the 18th century and to the Glorious Revolution—who fought for such a long time to make the King’s Government subordinate to the House of Commons, do not understand that it is only in the past 30 years that the House of Commons has brought down a Government by a vote of no confidence? That is how it should be, that is how it is, and I hope that it shall always be like that.

My Lords, I feel that the noble Earl is addressing his concerns to the other party. Perhaps when the noble Lord speaks up he will be able to answer that point.

My Lords, does the Minister recall the wise words of the noble Lord, Lord Kinnock, when, speaking at the 1992 general election as leader of the Labour Party, he promised that a future Labour Government would legislate for fixed-term Parliaments? Does she not think that it would be more democratic if the decision on the polling day for a general election did not lie simply with the leader of one of the political parties who is able to choose the time of the election according to his perception of the opinion polls? Does she not think that many Labour Party members now agree with the principle of fixed-term Parliaments, given the news that the Labour Party perhaps wasted about £1 million preparing for a general election that did not happen? It should be happening now but is not because the Prime Minister lost his nerve.

My Lords, my right honourable friend did not lose his nerve and the noble Lord has a nerve to suggest that he would. As for reports about finances, I have no idea, but I am sure that they are greatly exaggerated. I am clear that the Prime Minister has a right to call an election when he deems it right to do so.

My Lords, is it not the fact that the Prime Minister became bedazzled and then befuddled by opinion polls? Does the Minister agree that it would be better if all politicians took less notice of these insidious exercises?

My Lords, in my household they are revered as instruments that enable people to make many decisions, and not just in politics. As for my right honourable friend, he certainly was never bedazzled or befuddled.

Business

My Lords, with permission, a Statement entitled “Intergovernmental Meeting: Lisbon” will be repeated by my noble friend Lady Ashton at a convenient time after 3.30 pm.

Bournemouth Borough Council Bill [HL]

London Local Authorities and Transport for London Bill

Manchester City Council Bill [HL]

Transport for London (Supplemental Toll Provisions) Bill [HL]

Transport for London Bill [HL]

Broads Authority Bill

My Lords, I beg to move the six Motions standing in my name on the Order Paper.

Moved, That this House resolves that the promoters of the Bournemouth Borough Council Bill [HL] which was originally introduced in this House on 22 January 2007 should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

That this House resolves that the promoters of the London Local Authorities and Transport for London Bill which was originally introduced in the House of Commons in Session 2004-05 on 25 January 2005 should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

That this House resolves that the promoters of the Manchester City Council Bill [HL] which was originally introduced in this House on 22 January 2007 should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

That this House resolves that the promoters of the Transport for London (Supplemental Toll Provisions) Bill [HL] which was originally introduced in this House on 22 January 2007 should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

That the Commons message of 17 October be now considered; and that the promoters of the Transport for London Bill [HL] which was originally introduced in this House in the previous Session on 23 January 2006 should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

That this House do agree with the orders made by the Commons set out in their message of 16 October.—(The Chairman of Committees.)

On Question, Motion agreed to; and a message was sent to the Commons.

Local Government and Public Involvement in Health Bill

Read a third time.

Clause 3 [Invitations, directions and proposals: supplementary]:

1: Clause 3, page 3, line 2, leave out subsection (1) and insert—

“(1) Neither a direction nor an invitation under section 2 may be issued or given after 25 January 2008.”

The noble Baroness said: My Lords, the Minister has spoken much during the debates about the powers in the Bill being used to “make sense” of local government in the future. She has argued that the power to invite authorities to become unitaries must remain in the Bill even though the Government have currently—I emphasise “currently”—no plans for a future rolling programme of restructuring. She has said that the power to invite is still needed to “make sense” of existing programmes for restructuring. This is all very well and good and there will be nothing to prevent her department issuing invitations that are still needed under current schemes, such as Bedford, prior to January 2008.

Yet there is more to the extent of this power than necessarily meets the eye. The Minister noted that in the future the Boundary Commission could decide to change a boundary to such an extent that an existing two-tier system had to be incorporated into another existing unitary council. In theory, this would not count as the formation of a new unitary council, but the reality would be that yet another two-tier system could be swallowed up, this time without the need for a full consultation but simply as a tidying-up exercise.

Clause 3(3) and (6) imply that once an invitation is issued, the expectation is that it will be accepted. The wording of subsection (6) gives multiple authorities no option in responding to an invitation but to make proposals in accordance with that invitation. So it is clear that an invitation from the Secretary of State is not so much a suggestion or a request but an offer that those invited cannot refuse.

Even though the judgment of the judicial review put forward by Shrewsbury and others has supported the Government’s policy of restructuring and the issue of an invitation prior to legislation, the measures still in the Bill mean that they could commence a huge restructuring programme in future with no need for primary legislation and no parliamentary scrutiny as to its appropriateness. Directions in this legislation have already been limited to 25 January 2008. We believe, as we have discussed previously, that invitations for unitaries should also be so limited. Therefore, I beg to move.

My Lords, we have addressed this matter in slightly different forms on a number of occasions during the passage of this Bill. At the last stage, my noble friend and I tabled a rather longer amendment which provided for invitations to be given up to June of next year, rather than January, as under the noble Baroness’s amendment, and flowing only from the work that has been going on. Therefore, while we absolutely sympathise with the points that the noble Baroness has made about clarity and certainty, we will be unable to support the amendment, because it seems not to address the point that the Minister has drawn to the House’s attention—the tidying-up following directions that have recently been given. I think that Bedfordshire was the area that she mentioned in that regard.

I do not know whether the Minister can deal with that matter when she responds, or whether she will be able to respond to another issue that has troubled us since she drew it to our attention. If we put a complete cap on directions and invitations under this legislation, we would be thrown back to 1992. My noble friend Lady Scott and I considered bringing the matter before the House, as that was the position that we wanted, but then we thought that it would be an even more centralised arrangement than we will have under this Bill. At about that time we gave up because we did not think that we could go back to 1992, or further back still, at such a late stage in the Bill. Frankly, it was beyond us—or it was beyond me, at least. It might not have been beyond my noble friend.

Therefore, although I cannot say that we are hugely happy with the situation, we recognise the problems inherent in the arrangement that the noble Baroness proposes.

My Lords, I am grateful for the support of the noble Baroness, Lady Hamwee, because I shall have to say some of the things that I have said at previous stages. However, I shall also try to make it clear that the amendment would have very serious effects, along the lines alluded to by the noble Baroness.

I shall set out the three main arguments for resisting the amendment. If it was accepted, there would no longer be on the statute book any process for effecting essential structural change. There would no longer be a comprehensive process for effecting essential boundary change and the Government could no longer respond—as I described at Report—to areas where there is some exceptional local need or a clear desire for restructuring, where that would be appropriate.

The mechanisms and process for effecting sensible structural and boundary change, which would always depend in any case on the approval of Parliament, would no longer be available to government or local government, even when it was clear that such governance change could greatly help the delivery of better local services and the achievement of more effective place-shaping by the councils concerned. Therefore, we would not be thrown back to 1992; we would be thrown back to nothing. There would be no mechanism anywhere that we could use. I shall come on to that in more detail. I shall deal with each of the three circumstances.

First, the issue that these amendments would mean that there was no longer on the statute book any process for structural change for England is very much an issue of principle but it is also an issue of practice because the Local Government Act 1992, brought forward by noble Lords on the benches Opposite, enabled the Secretary of State, at any time, to request that the Electoral Commission direct the Boundary Committee to consider whether there should be a move to unitary structures, and if so to make recommendations.

That process was very much in contrast with the process at which we are looking in this Bill. It was centralist, driven by the Government and the Boundary Committee and remains on the statute book to this day. As we all know having been through three stages of this Bill, its intention is to replace that process with a new process—a process which reflects the changing nature of the relationship between central and local government; a genuine relationship which is based on devolution.

Therefore, the Bill provides for the repeal of the 1992 Act regime and in its place provides a regime where local government is genuinely in the driving seat; a regime where there can be no structural change unless one or more councils propose that change; and a regime where the shape of structural change is in large measure in the hands of councils themselves which propose that change.

As I say, departing from the principles explicit in the 1992 Act these amendments would remove from the statute book any process for structural change. It is not the case that the Bill, as amended, would in some way keep the status quo; it would not. That is the problem. It would mean that, after 25 January 2008, there would be no process for effecting structural change. That is a breach with our traditions and not a sensible position in which to put either local or central government, leaving them with no ability to respond.

Secondly, the amendment would mean in practice that only boundary changes that would not involve a unitary council merging for example with a neighbouring shire district council could be effected. We covered this issue on Report, but I shall do so again. When reviewing an area, the Boundary Committee may form the view that a unitary district council needs to expand its boundaries due to population or housing growth. It may be necessary to expand the boundaries to such a degree that the remaining area of the two-tier district council is no longer viable. However, Clause 8 prevents the Boundary Committee from recommending the replacement of a two-tier area with a single-tier as a consequence of altering the boundary of a unitary council. In this situation—where there is a strong and sensible case for structural change stemming from a boundary change—Clauses 1 to 4 enable the Government to invite the local authorities in that area to come forward with a proposal which they believe makes sense for the local area. It is wrong in practice to introduce the kind of inflexibility which means that we cannot deal with that situation. I do not think that local government would be at all grateful for that.

However, it is equally wrong to introduce the kind of inflexibility where we could not deal with situations where, in the future, there is a specific and definite appetite for change and where it would be right to issue a focused and targeted invitation to the councils concerned. It would not be an offer they could not refuse because they would have had to take the initiative and say to central government, “We think it is only sensible that we proceed in this direction. Will you invite us to go ahead”? That is the way the dialogue would go. We certainly would not be imposing it; we would be responding to their considerations.

On Report, I explained at length and with great care that this does not mean that local authorities have carte blanche to come back and forth with proposals for unitary status. There is no future rolling programme, nor is there an open-ended invitation or a revolving door. However, we cannot and should not bolt that door so tightly that if, exceptionally, a local authority does seek sensible structural change, it is not free to approach Government and we are not free to invite it to make proposals. However, I assure the House that this is not a way of seeking by the back door to entice local authorities to seek to form unitaries. I believe—I hope that the noble Baroness will accept—that there are mechanisms in place, and it is important that we have those mechanisms to deal with the kinds of situations that I have outlined. The process that the Bill puts in place is devolutionary, with councils in the driving seat. There is no change unless one or more council wishes it, and there is no change unless it is approved by this House and by the other place. That process is fit for today, and it recognises constitutional—

My Lords, I am grateful to the Minister. Does she accept that one of the reasons why we have had such difficulty with this is because of the clear, unambiguous remarks made in another place by the then Minister, who is on record as saying that the proposals in the Bill are intended to relate only to the local authorities that are under consideration? We have wasted quite a lot of time having a debate around that, whereas if he had been much more clear and had enabled the noble Baroness to be clear in Committee about the exact status of the proposals, we could perhaps have saved ourselves and the House a great deal of time.

My Lords, in the course of debates in both Houses one sometimes wishes one could have been as clear at the beginning of the process as one is at the end. I hope that we are all now clear. I ask the noble Baroness to withdraw the amendment.

My Lords, I thank the Minister for her third reply on this subject. Unfortunately, every time we discuss this another point is raised. I will challenge the Minister a bit on this. As I understand her, if we do not take the invitations out and we leave the provision as it is, local authorities will come to the Government and say that they want to form unitaries and not the other way around. That is not what the legislation says. The legislation says:

“Where invitations or directions under section 2 are given”.

“Under section 2” is a direction from the Government. All of Clause 3 is about an initiation by the Government—either an invitation or a direction. We are all very clear that a direction will cease on 25 January 2008. With respect, I do not think that the legislation does what the Minister says it does. It may be that local authorities can come to the Government and say that they would like to form a unitary, in which case the Government can say, “All right, in that case we will issue an invitation”. That is not what the legislation says. It will have to be turned round in some way.

Confusion exists over the word “invitation” and it leaves a very open-ended situation, which has already caused enormous angst among the elements of the new unitaries. We have already had one judicial review, and it is not certain that there will not be more. It is certainly not clear that in the proposed unitaries there is unanimity between the districts or on the county councils, where proposals are being put forward. We ought to see an end to this part of the legislation. I beg leave to test the opinion of the House.

Clause 33 [Resolution for whole-council elections: requirements]:

2: Clause 33, page 19, line 37, leave out paragraph (b)

The noble Baroness said: My Lords, this group of amendments tidies up the Bill following your Lordships’ decision to remove the elected executive model from the Bill. We are of course disappointed that noble Lords opposite have chosen to remove what is, as I have stressed throughout every stage, a highly innovative model. However, as that is the will of the House, we have ensured that all references to elected executives are removed from the Bill.

The amendments remove Schedule 3, which sets out the voting system for a directly elected executive and is therefore no longer required. We are bringing back amendments to Schedule 4 which make consequential amendments to the Local Government Act 1972 and relate to the provisions in Clause 66(3), which clarifies when a mayor is to be treated as a member of a local authority.

We also reinstate Schedule 5, less any reference to elected executive models, as the provisions within that schedule are necessary to allow local authorities to make the transition to the executive models that remain in the Bill—that is, the leader and Cabinet executive and mayor and Cabinet executive models.

The amendments reflect the will of the House and ensure that the Bill is fit for purpose. I commend them to the House and beg to move.

My Lords, I hope that the Minister received a message from me earlier this morning concerning some questions that I want to ask about this group of amendments. That might seem a little odd, as my name has been added to some of them, but that was for a procedural reason that I still do not quite understand.

First, have we now filleted the Bill completely as regards directly elected executives? This is not an amendment to her amendment but, if I am right, it can possibly still be swept up, as there is a little sweeping-up time left. It seems to me that in Clause 12, which concerns structures, there remains a reference to directly elected executives.

My second point concerns Wales. When I originally read the provisions regarding Wales, it seemed that Part 3, which introduces directly elected executives, was drafted to separate out the Welsh provisions so that the National Assembly for Wales could make its own decisions about local government structures. Can the noble Baroness say something about the impact on the Welsh system of deleting from the Bill references to directly elected executives?

Thirdly, as was pointed out to us fairly early on in our deliberations, Section 11 of the Local Government Act 2000 would have enabled everything that this Bill contains as regards executives to be brought in anyway through regulations. Therefore, as those provisions still remain, can the Minister say what effect the regulations would have and, in particular, if we assume that the deletion sticks, as it were, to the end of this Bill, whether the Secretary of State would rule herself out from using the backdoor method of regulations under the earlier legislation?

In the circumstances that we are now in, I find it quite difficult to read new Section 33I of the 2000 Act alongside Section 11. Can the Minister say something about the implications of reinstating Section 39(4) of the 2000 Act, which would be the effect of the amendment to Clause 66, to which she spoke?

Finally, I turn to Amendment No. 79. I am afraid that I did not give the Minister notice of this. This relates to a new schedule after Schedule 4, which refers to operating the old-style leader and Cabinet executive model. I know that that is defined, but in colloquial terms am I right in thinking that this is the leader and Cabinet executive—same style but older Act? I find it difficult to understand what that is all about.

My Lords, while the noble Baroness is having a drink of water, perhaps I could say that I had understood that we were now to hear the important European Statement. If the noble Baroness is to speak for very much longer on this amendment, perhaps we could carry on by having the Statement for which the House is now waiting.

My Lords, I have only one more sentence, but I have no idea how long the answer might be. I, too, was rather surprised that we went on with the Bill and I apologise to noble Lords who are not as transfixed as I am by the new schedule to the Bill. Under paragraph 4 of the new schedule, a local authority must make a change in its governance arrangements under what will be Section 33A. I find it really hard to understand what the Government are expecting local authorities to do.

My Lords, we took another amendment before turning to the Statement because we thought that we had better ensure that the Prime Minister was not on his feet. We thought that we had a short technical amendment.

I shall answer the noble Baroness as briefly and as concisely as possible. Let me take the Welsh situation first. The Bill allowed only English authorities to operate DEEs. As local government is a devolved matter, it is for the National Assembly for Wales to consider whether, in future, Welsh councils should be able to develop this model. So Wales is pursuing its own course.

I turn to the amendment that looks at the relationship between new Section 33I and Section 11. I can reassure the noble Baroness that our amendments remove all the provisions that would have allowed councils to resolve to move to the DEE model. In tidying up the Bill, we have amended the Local Government Act 2000 to return it to its pre-Bill position in relation to providing for additional forms of executive arrangement. On Section 11(5), at various stages of the Bill I said that this would enable local authorities to come forward with other innovative forms of executive arrangements. Therefore, by implication, the Government would not be bringing forward DEEs by a backdoor, but would be able to respond if local authorities had something in mind that they wanted to do, to which all members of the executive agreed. Where a council asked to pilot such an approach and we were satisfied that leadership arrangements would be likely to ensure that decisions of the authority were taken in an efficient and transparent manner, we think that we should be able to provide for that—that is the burden of the clause. Clearly, we would have to seek the approval of both Houses for any such regulations, but that possibility is there.

On Clause 12, I am grateful that the noble Baroness has brought her third point to our attention. I can assure her that, despite the references in Clause 12, the substantive amendments to remove DEEs mean that we would not be able to provide for this model for a council that had been newly established.

The final point was about this rather confusing language of an old-style leader and Cabinet. That is indeed the leader and Cabinet as created through the 2000 Act; the new style is the leader and Cabinet as amended by this Bill.

On Question, amendment agreed to.

Clause 38 [Resolution for elections by halves: requirements]:

3: Clause 38, page 22, line 5, leave out paragraph (b)

On Question, amendment agreed to.

Clause 40 [Resolution for elections by thirds: requirements]:

4: Clause 40, page 22, line 38, leave out paragraph (b)

On Question, amendment agreed to.

Intergovernmental Meeting: Lisbon

My Lords, with permission, I shall now repeat a Statement on the European Council made in the other place by my right honourable friend the Prime Minister. The Statement is as follows:

“With permission, Mr Speaker, I want to make a statement about the outcome of the informal European Council in Lisbon. The new agreed text of the amending treaty to support the enlargement of the EU has been placed in the Libraries of both Houses. Alongside the treaty, it was agreed at Lisbon that the priority for the European Union now must be the global challenges that we face: employment, prosperity, competitiveness, climate change and security. Today, in the document Global Europe published this afternoon, the Government are setting out how we will advance these new priorities in the future.

“The mandate for the IGC made it clear that:

‘The constitutional concept, which consisted in repealing all existing Treaties and replacing them by a single text called “Constitution”, is abandoned’.

My intention throughout the summer and autumn of negotiations has also been to ensure that detailed safeguards for the British national interest are written into the text of this treaty. I invite the House to examine in detail both the treaty and the protections that we have secured by our insistence on special treatment for the UK in a range of areas where our national interests demand.

“First, I will ensure that Parliament has the fullest opportunity to examine the protocol on the Charter of Rights. The protocol, which is legally binding and enshrined in the treaty itself, provides an essential safeguard for the UK. It states that,

‘the Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that “the Charter” reaffirms’.

“This legally binding protocol ensures that nothing in the Charter of Fundamental Rights challenges or undermines the rights already set out in UK law. The treaty also ensures that nothing in the charter extends the ability of any court—European or national—to strike down UK law. This point is reaffirmed in the protocol, which states:

‘In particular, and for the avoidance of doubt, nothing in [Title IV] of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law’.

“Secondly, we have secured in detail vital safeguards to our criminal law system and police and judicial processes, while making it possible to co-operate across borders when we choose to do so, when it is right in matters vital to our security. The safeguards are also enshrined in legally binding protocols to the treaty. They prescribe in detail our sovereign right to opt in on individual measures where we consider it in the British interest to do so, but also to remain outside, if that is in our interests. In the past, for example, we have opted in on measures dealing with combating illegal immigration and exchanges of information where these measures are unquestionably in Britain’s interests.

“The new treaty gives us the freedom to protect the fundamentals of our common-law system if we believe that it could be jeopardised, while at the same time it allows us to participate in areas where co-operation is in the national interest. The agreement set out in the details of the text is that it will be in our exclusive power to decide on a measure-by-measure basis. As a result of our recent negotiations, the opt-in now covers all types of measures: completely new ones; amendments to existing ones; and, where measures come forward under the Schengen agreement, we also have the right to opt out. So we can choose to participate in any and every measure, but we cannot be forced to do so. If we choose not to, there is a fair, objective and robust system for consequential changes but no financial or other penalties. So we have secured a comprehensive, legally binding opt-in on all justice and home affairs measures, which will enable the UK to choose whether or not to participate in any justice and home affairs measures in future.

“I turn to the common foreign and security policy. I welcome further scrutiny by this House of the agreements that we have secured. For again I believe that it is now absolutely clear that the basis of foreign and security policy will remain intergovernmental, a matter for Governments to decide. The intergovernmental basis is unchanged and subject to distinct rules and procedures that protect that position.

“The declaration that we secured expressly states that nothing in the treaty affects the existing powers of member states to formulate and conduct their foreign policy, including maintaining their own national diplomatic services and membership of the UN Security Council. There is no sole right of initiative for the Commission and there is no role for the European Parliament in decision taking. Voting by unanimity is the rule for all policy decisions. Apart from two specific and limited provisions in foreign policy—appeals against EU sanctions and, as now, any overlap with, for example, international development assistance—there is no jurisdiction for the European Court of Justice.

“The declaration agreed on Friday made it clear that the European Parliament would have no new role in the appointment to the new post of High Representative, which will be made by the European Council, and there will be no change to the way in which EU foreign policy is decided; it will continue to be governed by unanimity. There is, in addition, a clear declaration that nothing in the treaty, including the Office of the High Representative and the External Action Service will affect in any way,

‘the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the UN’.

“On social security, we have secured an effective veto power on any proposals for important change. We can insist on taking any proposal to the European Council and, because it will be decided by unanimity, we have a veto where we—Britain—determine that a proposal would impact on important aspects of our social security system including its scope, cost or financial structure.

“In justice and home affairs, the amending treaty gives us the right not to participate; in social security, it gives us the right to insist on unanimity. Many qualified majority voting measures—for example, rules for the euro or special state aids for Germany—do not affect the UK. The remaining areas of QMV agreed in June are decisions on emergency humanitarian aid to third countries—manifestly in the UK’s national interest—and energy market liberalisation, again in our interest. Others are technical or procedural and simply relate to the efficient functioning of the Union—for example, the internal rules for appointing the Committee of the Regions, judges and the Economic and Social Committee.

“While there is a two-and-a-half-year presidency of the European Council, the President of the Council has been appointed as the servant of the leaders of the national Governments, and the purpose is to strengthen the council of national Governments in relation to other EU institutions.

“The new treaty also expressly provides that national security is the sole responsibility of member states. The declaration to the treaty makes it clear that, while the European Union, like the UN, World Trade Organisation and the International Monetary Fund, can sign international agreements, this does not and cannot authorise the Union in any way to legislate or act beyond the powers conferred on it by member states in the treaties.

“As a result of our negotiation, we are agreed that the new text will make it clear that national Parliaments have the right, but are not obliged, to contribute to the work of the Union. Under the amending treaty, national Parliaments have a new right to force the EU to reconsider proposals if a third of Parliaments feel that the issue is better dealt with at member-state level. Symbols of statehood that were the characteristic of the rejected constitutional treaty—European flags, anthems or European mottos—have been abandoned in the treaty.

“As I have already made clear, the Government will agree the amending treaty in December only if in the final text all the UK’s protections I have outlined are included in the detail that we have negotiated. Parliament will have the opportunity to debate this amending treaty in detail and decide whether to ratify it, and the Government will recommend that there is sufficient time for debate on the Floor of the House so that the Bill is examined in the fullest of detail and all points of view can be heard.

“In addition, we propose to build into the legislation further safeguards. To ensure that no Government can agree without Parliament’s approval to any change in European rules that could, in any way, alter the constitutional balance of power between Britain and the European Union, we will make a provision in the Bill that any proposal to activate the mechanisms in the treaty which provide for further moves to qualified majority voting, but which require unanimity, will have to be subject to a prior vote by the House.

“The amending treaty will not be fully implemented until 2014. Indeed, one section does not have full effect until 2017. I can confirm that not just for this Parliament but also for the next it is the position of the Government to oppose any further institutional change in the relationship between the EU and its member states. In our view, there is also a growing consensus across Europe that there should be no more institutional change for many years.

“The December European Council will also consider a declaration proposed by Britain that Europe moves to a new agenda and that the new priorities are a focus on jobs, competitiveness, prosperity, climate change and security so that Europe can play a far stronger part in the competitive economy of the world and be a leader and success story in the new global order.

“So because it is right that Europe now focuses not on more institutional change but on the reforms that are needed to meet the challenges of the global era, we are publishing today our agenda for the new priorities that we as the EU must adopt: a renewed focus on completing the single market, with the priority being the liberalisation of the telecoms and energy sectors; a commitment to free trade and openness, with the priority being to ensure a successful outcome to the world trade talks and to promote better European Union/United States trade links; tackling climate change and energy security; combating terrorism and organised crime; reducing global poverty; and reforming the European Union budget.

“It is by putting in place these changes that we can create a truly outward-looking, globally focused European Union that helps to deliver prosperity, opportunity and security for all—an agenda that is good for Britain and good for Europe. It is an agenda that allows us to continue to benefit from our membership of the European Union and, by working together, to have a greater influence in the world. So the protections that we have negotiated defend the British national interest.

“We are putting in place new procedures to lock in our protection of these interests. We will oppose any further proposals for institutional change in the European Union this Parliament and the next. We will lead the debate in Europe to move to a new agenda of new priorities that focus on the economic and social needs of our citizens. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the noble Baroness for repeating the Statement. As I listened, it became increasingly clear that it is a Statement that goes to the very core of the character of this Government, given the fundamental and unequivocal nature of the manifesto promise that it breaks.

Does the noble Baroness remember the Statement four months ago when the Prime Minister claimed that he would restore trust in politics after 10 years of spin? By contrast, he comes to Parliament today as a man who clearly does not trust the British people, who plans to break his manifesto promise, and who now falls back on spinning lines to the British people. Red lines, his spin doctors call them, but, as a Select Committee in another place, to which your Lordships were sadly forced to turn for guidance on this treaty, found, those red lines are about as durable as lines in the sand. The Prime Minister may believe that those lines will be there in five or 10 years’ time, but precious few others do, so can the noble Baroness explain what guarantees exist for the so-called red lines?

The first foreign policy act of this Government in 1997 was to abandon our opt-out from the social chapter, a green light to regulation from which British business has been reeling ever since. At what price a promise to hold to feeble, flimsy red lines when they are struggling to shore up positions that they abandoned 10 years ago? No one believes that the red lines are fixed or effective, and no one believes that this treaty is any different in substance from the constitution on which we were solemnly promised a referendum only two years ago. As the Spanish Foreign Minister put it:

“The wrapping has been changed, but not the content”.

As the German Chancellor said this very week:

“The substance of the constitution is preserved. That is a fact”.

It is a fact, yet the Prime Minister treats the British people as fools by translating German fact into Scottish fiction.

Does the noble Baroness agree with a top British business leader who told the Economic Research Council only this June:

“It’s a con to call this a treaty—it’s not. It’s exactly the same—it’s a constitution”?

Those are the words of a top British business leader who is none other than the noble Baroness’s noble friend Lord Jones of Birmingham. “It’s all a con”, he said. The noble Lord was handpicked to speak for a Labour Government because the Prime Minister did not trust any Labour Peer to do it. When he says it’s a con, should we not believe him? Does the noble Baroness? If the Prime Minister can sell the noble Lord as a good Labour man, he can certainly sell 98 per cent of the constitution as something else, and his manifesto promise can be sold down the river.

If the British people, like the noble Lord, Lord Jones, see this as a con, it will reflect on Europe as a whole. That would be damaging for our country. There is much that Europe ought to be doing and that we should be doing together. We should be dismantling the choking acquis of regulation that is holding back European business. Europe should be working to improve competitiveness and enhancing enterprise, not blunting it. It should be looking outside and listening inside. That is the right road for Europe, and one of the sad realities of Lisbon 2007 is that the last Lisbon process still remains stalled. The leaders of Europe were right when they said that too much time was spent on institution building and that it was time to move on, but the public of Europe need to have their stake in that too. That is why my party stands by the promise given by us all at the last general election to hold a referendum on this constitutional treaty.

I respect the integrity of the great parties represented in this House—of Labour and, indeed, the Liberal Democrats. Whatever their leaders say now, I think that when they knocked on the doors, most members of those parties meant what they said in their manifestos. The Labour Party said:

“We will put it to the British people in a referendum”.

The Liberal Democrats said that,

“ratification must be subject to a referendum of the British people”.

It is a question of trust, a question of honour, and whatever our views on this treaty, after that election campaign the British people have a right and an expectation to be consulted. The Government did not say then that there should be no referendum, yet can the noble Baroness confirm that the constitution had essentially the same red lines as we have today? So why is there no referendum now? They did not say that only a parliamentary route is right in any of the 30 referendums we have had in this country since 1997 in creating a new Scottish Parliament or an Assembly in Wales. So shall the British people not have a say in having dozens of vetoes stripped away, powers taken from Parliament, new encroachments on British laws and new institutions to take decisions in their names? I believe that they should, and many in Parliament on both sides of the argument will agree.

Few really want to see this country leave the European Community, and my party would fight that step. On the contrary—

My Lords, the noble Lord will have an opportunity to speak in a moment. We believe in a strong, modern, competitive and decentralised Europe, not the old-fashioned, centralised version in this treaty, supported by both the Labour Party and the Liberal Democrats. Does the noble Baroness not see that, if we do not trust the people on this and if we let the gulf grow between the governed in Europe and a new political class, disenchantment and disillusion with Europe will surely grow? Does the noble Lord, Lord McNally, not see that, too?

The leaders in Lisbon agreed on two things: they agreed that this new treaty is brilliant news for the people of our countries, but that in no circumstances will we allow our people to vote on it. That attitude was a negation of the principle of trust on which open democracy in Britain has been built. That breach of trust is a time bomb ticking at the heart of the European project. The reality cannot be wished away. A referendum, as we found in 1975, should be an occasion to put the case for Europe and the kind of Europe that each of us wants and to ask whether we believe that the integrationist route set out in this treaty is in our national interest, as the Prime Minister claims.

Can the noble Baroness shed any light on the timing of the ratification Bill, and on when this House should expect to deliberate on it? Does she agree that, when the time comes, this House will have to think long and hard about where its responsibilities lie in upholding the integrity of our politics, the trust in our politics, and the British people’s right to have their say on one of the greatest questions facing our nation’s future?

My Lords, I thank the Lord President for repeating the Statement, and I congratulate the Prime Minister on successfully concluding these negotiations. I hope that we can have a debate very soon on this document on global Europe, which of course none of us has had a chance to read, and on the new agenda set out in the Statement. I realise that that will be a matter for the usual channels, but I sincerely hope that we will have that debate soon. The Statement has about one page of positive statements and a lot of defence in it. I understand the reason for that balance, but is the Lord President aware that we on these Benches agree with the Commons European Scrutiny Committee, which was referred to, that the changes and opt-outs negotiated by Britain make this a different proposition for this country from those proposed earlier in the constitution?

As for the question put to me by the noble Lord, Lord Strathclyde, about trusting the British people, my personal view is that Parliament should be wary of going too often to referendums to solve its problems. We are a parliamentary democracy, and these great decisions should be debated and discussed in Parliament, as they have been for the past 700 years. I wonder whether the crocodile tears being shed by the Conservative Party on this matter about the need for a referendum would have more validity if the previous three Conservative Prime Ministers—Mr Heath, Mrs Thatcher and Mr Major—had not carried through far more fundamental changes to our relations with Europe by means of the parliamentary process.

Are not most of the amendments being proposed a direct result of the enlargement of the European Union to 27 states—an enlargement which the Conservative Party enthusiastically supported? Having willed the ends, they wish to throw a spanner into the work of achieving those ends. Anyone who saw Mr Hague on television over the weekend saw the real problem at the heart of the Conservative Party when he was asked about the Early Day Motion that had been tabled by, among others, Mr Bill Cash, Mr Iain Duncan Smith and Mr John Redwood. The flat Earth society is alive and well in the Conservative Party, and the Conservative leadership must yet work out how it deals with it.

Is the Lord President aware that there was some concern that one of Mr Brown’s first weekend guests at Chequers was Mr Rupert Murdoch? Can we be assured that the Government will not be bullied, intimidated and threatened by Mr Murdoch on this matter? When reading the editorials of synthetic outrage about there being no referendum, will the Prime Minister remember that all Mr Murdoch’s esteemed editors would stand on their heads tomorrow at one click of their proprietor’s fingers? Mr Brown should remember that the two Prime Ministers best remembered for their dealings with the press are Stanley Baldwin, who memorably accused the press barons of his day of practising power without responsibility, and Mr Attlee, who read only the Times and then only for the cricket scores. A similarly robust attitude in the face of self-interested hysteria would do the Prime Minister's reputation no harm.

Finally, in giving this responsibility to Parliament, can we be assured that the Prime Minister and the Government will present their case not in terms of saving Britain from some Brussels monster? For 30 years, successive British Governments have given succour to Euro-scepticism by treating every positive outcome as a domestic triumph and every difficult decision as an imposition from Europe. By all means, let us have a robust agenda for reform of the CAP, the democratic deficit or a realistic approach to subsidiarity. However, the Government must use the debate ahead of us to remind the British people of the peace and prosperity that the European Union has delivered. They should also remind the public that none of the global challenges facing us—on the Lisbon agenda, trade, climate change, the fight against terrorism and organised crime, energy supply or our current contribution to peace and stability in the world's trouble spots—is not better faced by a Britain working at the heart of a successful Europe.

This is a defensive Statement and, as I said, I understand why, but it is now time for the Government to move on to the front foot in this argument. Given that kind of lead, the Conservative opposition will be seen for what it is: a piece of shoddy opportunism to paper over its own divisions on Europe. If the Government give such a lead, I can assure them that they can rely on the votes of these Benches in seeing this amending treaty through this House.

My Lords, I am grateful to both noble Lords for setting out their views so succinctly and especially grateful to the noble Lord, Lord McNally, for the commitment that he gave to support the Government in this matter. The noble Lord is right: in many senses we rely on precedents. We have looked at the treaties that have gone through your Lordships' House and another place over the years and, as I am sure the noble Lord, Lord Strathclyde, has heard many times already, the precedents of his predecessors are there for all to see. That, above all else, should give succour to noble Lords in understanding precisely what the Government are doing.

My Lords, on that question, the Minister will readily agree that, between Mr Major signing up to the Maastricht treaty and its ratification in Parliament, there was a general election, which there might have been if the Prime Minister had gone ahead with what he was going to do only a few weeks ago.

My Lords, indeed, but that is not relevant to the precedent that I am putting forward. Let us be clear that it is important to look at the detail of what is being put forward in the reform treaty, to compare it with what is proposed in the constitutional treaty and for noble Lords to make their judgments on what is before us.

I also agree with the noble Lord, Lord McNally, that we are a parliamentary democracy. The different elements of this treaty are worthy of substantial debate in your Lordships' House and another place. In the Statement, my right honourable friend made a commitment that the Government would ensure that there was time to do that, and we will do so in your Lordships' House. That is the way to ensure that we deliver on what we set out last weekend in Lisbon and in the formal signing of the treaty later. That is how we should proceed. It is a much better proposition to look at all of these issues in detail than simply to say that they can be condensed into what could be seen as a discussion about whether we are in or out of Europe, which is precisely what some noble Lords and Members of another place want.

The trust of the British people is important not only to this Government but to both Houses of Parliament. It is essential that in our deliberations the British people are able to see parliamentary democracy at its best. We said that if we were ratifying the constitutional treaty we would seek a referendum. We are not. The reform treaty is substantially different. In another place, it was made absolutely clear in the report of the Select Committee at paragraph 72 that because we have—I quote it more or less from memory—the opt-ins, opt-outs and derogations, there is no need for us to seek such a referendum. Nowhere in the report, as I have read, does it recommend a referendum. Noble Lords should be clear about what is being proposed.

The noble Lord, Lord Strathclyde, had a number of quotes. I have as many quotes as the noble Lord, although I will not take too much of your Lordships’ time. One important quote is from the Dutch Council of State, which says:

“The changes are aimed, as far as possible, at purging the Constitutional Treaty of those elements which could have formed starting points for the development of the EU in a more explicitly centralised or federal direction”.

The right honourable Mr Kenneth Clarke said that,

“the nuts and bolts are obviously quite essential … What we have now is far less important than Maastricht … I think the idea we have a referendum … is frankly absurd”.

I could go on. Alan Dashwood, professor of European law at Cambridge University, said about the red lines on justice and home affairs:

“They provide a very solid safeguard”.

I assure the noble Lord that my noble friend Lord Jones of Birmingham is full-square behind the Government in this and is working with us to make sure that business is able to add its voice of support, as my noble friend is sure it will.

I agree with the noble Lord, Lord Strathclyde, that we want a Europe that looks at competitiveness and is,

“looking outside and listening inside”.

That is an extremely good quote, which I shall immediately poach from the noble Lord and use. It is important that we have a modern, competitive Europe, which is able to move forward.

I agree with the noble Lord, Lord McNally, that it is important that the usual channels will have to decide whether there will be a debate. The noble Lord has had the chance to read the document being put forward and to understand that my right honourable friend is very clear. We have now done this part of looking at the institutions. As the noble Lord said, that was generated in large part because we are now 27 member states and how we operate needs to reflect that fact. We need to think about Europe in a globalised world and the opportunities that that gives us in a globalised economy, as well as about Europe being able to act in a cohesive way where that is appropriate in a globalised world.

I would describe the relationship with the press that my right honourable friend seeks as robust. I see no indication thus far that he is ever likely to be turned over or run over by the press. I agree with the noble Lord, Lord McNally, that Europe has brought us, and continues to bring, peace and prosperity. We look at the nations seeking to join the European Union that, not long ago, were in a war-torn situation, and the opportunities that that will give us to build peace and prosperity right across Europe.

Finally, I say to the noble Lord, Lord Strathclyde, that the question that I would like to be answered is: if Parliament does, after great debate, ratify this, will the Conservatives then accept the will of Parliament or will they still seek a referendum?

My Lords, perhaps the noble Baroness the Leader of the House would accept my congratulations to the Government on having concluded this negotiation on a basis that seems to me to be very satisfactory for this country. Does she accept that there was a great deal of truth in what the noble Lord, Lord McNally, said? If the treaty is to be ratified, it is essential that the Government state why it is a good treaty, which is full of improvements in how the European Union will be run; namely, in a way that will be more effective and consistent with this Government’s and country’s interests. It is not enough just to set out a large number of red lines and to be very defensive about it. I hope that in future the Government will explain not only as they have in their paper today that there are a lot of other things that Europe needs to get on with, with which I entirely agree, but also that there are things in this treaty that will make the European Union work better for our interest.

The noble Lord, Lord Strathclyde, had a bit of fun at the expense of the noble Lord, Lord Jones of Birmingham, but I hope that the House will forgive me for quoting from the Dutch Council of State, which is quite important and even conceivably a weightier authority than the noble Lord, Lord Jones of Birmingham. It stated that the purpose of these changes—the changes from the constitutional treaty to the reform treaty—is to rid the proposed reform treaty as far as possible of the elements from the treaty establishing a constitution which could have formed the basis for the development of the EU into a state or federation. That the goals are clearly different is, it stated, apparent from the emphasis on the roles of national parliaments, limits on the competences of the EU, the emergency-brake procedures and the protocol on services of general interest and of general economic interest. All this means, it said, that the proposed reform treaty is substantially different from the treaty establishing a constitution for Europe. That surely is a very clear statement by a body advising a country that does not have the opt-ins and the opt-outs that we have—that is to say, a country that is signing the treaty without any such red lines. If its view is that the treaty is substantially different, I find that fairly authoritative. I do not know whether the Leader of the House does, too.

My Lords, I am grateful to the noble Lord, Lord Hannay, who brings a great deal of knowledge and expertise to our discussions about Europe. I agree that we will have much to say in the passage of the legislation about the advantages of moving to the reform treaty—not least, as the noble Lord, Lord McNally, indicated, because with 27 nation states it is important to be able to function as effectively as possible.

Let me draw the attention of noble Lords to but one part of the agreement; that is, the opportunity for national Parliaments to play a role when the Commission puts forward proposals. National Parliaments will have the opportunity, if they wish, to discuss and debate and to let their views be known. If a third of them recognise that there are issues of concern where they believe that it would be better for member states to tackle such issues themselves, these views can be made known to the Commission and it will have to think again. These are important aspects that we will, indeed, debate.

My Lords, does the Leader of the House accept that some of us have noted that the arguments used by the Government for refusing a referendum constantly change? It is surely no use saying that the treaty does not alter the fundamental relationship between the EU and member states, because Mr Blair said that the constitutional treaty, too, did not alter that relationship, yet he still promised a referendum. It is no use the Prime Minister going on about red lines because Mr Blair said that he, too, had secured red lines and opt-outs, yet in spite of having secured the red lines and opt-outs he still promised a referendum. It is no use the Government saying that this treaty is different from the constitutional treaty, because everybody else says that it is exactly the same.

Does not the Leader of the House recognise that the refusal of a referendum will do a great deal of damage to the trust that is normally given by the governed to the governors? Why should Members of Parliament be left to deal with these matters? They are elected for four or five years to exercise the powers that are bestowed on Members of Parliament; they are certainly not elected to hand over those powers to others. That is a very good reason why referendums should become an established part of our constitution.

Finally, it is no use going on about Maastricht. Anyone looking back on Maastricht will recognise that it would have been a very good thing if there had been a referendum at that time. It would have dealt with the matter in a sensible fashion and, win or lose, at least the people would have been consulted and the EU would have been accepted by the people of Britain. The Government are taking a great risk by excluding the people from this very important matter.

My Lords, I disagree with practically everything that the noble Lord, Lord Waddington, said. I am sure that the noble Lord will take time to study the differences between the constitutional treaty and the reform treaty and see the changes that have been made. The substantive difference is the ability of the UK to ensure that it protects its national interests. My right honourable friend, in the negotiations that took place last week, especially on Friday night—these were ongoing discussions through a variety of different forums within the EU—has secured for Britain the appropriate opt-ins and opt-outs. Noble Lords will, I am sure, spend many happy hours discussing the difference between the two, but there they are.

It is absolutely clear that the reform treaty is a different animal from the constitutional treaty. Indeed, there were debates as to whether the constitutional treaty should warrant a referendum. The noble Lord is right: the Government promised one on the constitutional treaty, but the constitutional treaty is abandoned. We now have something entirely different, on which it is right for Parliament’ for Members of another place and Members of your Lordships’ House’ to do their duty and take their responsibilities seriously. They should debate it and choose whether to ratify.

My Lords, I congratulate the Government on achieving this treaty, which is eminently the kind of thing that should come before the careful consideration of the two Chambers of Parliament. It is exactly this sort of detailed, difficult and complex treaty that should be Parliament’s responsibility. It would be almost impossible to embody this in a referendum. It is reasonable to have a referendum on whether Britain should be in or out of the European Union, but it is utterly beside the point to have one on something as complex and detailed as this.

Two areas of the Statement are matters of some concern. First, the Government state that the Commission will not have the sole responsibility for an initiative. It is not clear from the wording, but does that imply that the Commission will have a responsibility for the initiative but that responsibility will also rest with member Governments? There is a reference to the initiative power; when the Statement says that it will not be the sole responsibility of the Commission, it implies that there will be shared responsibility between national Governments and the Commission.

On the other point that I want to raise, which is very important and which troubles me, there is some indication of what I can only describe as unfortunate pressure from the great press magnates who interest themselves in it, one at least of whom is a citizen neither of this country nor of the European Union. When the Government have committed themselves to making no further changes in this Parliament or the next, can the noble Baroness the Leader of the House make it plain that, if there were to be evidence that in respect of national security, global terrorism or climate change such changes were absolutely essential to make the European Union’s response effective, she would not regard that as falling inside the vetoes mentioned in this Statement, which run disturbingly far in terms of a future that we cannot possibly predict in any precise way?

My Lords, I am very grateful to the noble Baroness and agree with her that it will be of great value to the public not only that we debate this treaty but that we ensure that we promote those discussions so that members of the public can hear, see and discuss this. I fear that at the moment many members of the public, like some Members of your Lordships' House, may be unaware of the implications of the treaty—and, unfortunately, the language of opt-in and opt-out does not necessarily invite ready understanding, even before we get to passerelle, qualified majority voting and so on.

I understand that the particular reference to the Commission to which the noble Baroness referred means that the Commission does not have a role in foreign and security policy at all. I think that that is the right reference, but I shall confirm that—and, of course, confirm if it is not the case.

As for future changes, what I think my right honourable friend is trying to say is that we have had a long time of debating institutional structure—appropriately so with 27 member states. Noble Lords will recall that I sat on the Justice and Home Affairs Council for nearly three years and watched the growth and saw the difficulty—which, in a sense, in having 27 nations, we created for ourselves—in trying to deliberate on matters. So it is important to think about how we do that and about whether, for example, with a constantly changing presidency every six months, things do not change just when you are getting used to doing it. There are real benefits and advantages, but my right honourable friend is saying that now we must concentrate on the issues. I think that he would agree with the noble Baroness that the issues that she indicated of national security, climate change and so on must be very high on the agenda and that we must ensure that the way in which the European Union works enables us to tackle them effectively.

My Lords, Article 1 of the treaty says that the Union shall repeal and succeed the European Community. Therefore, intergovernmentalism is dead. Together with the article that gives the European Union a legal personality, does that not really alter the whole situation?

The Prime Minister said that he wanted the best and widest possible discussion in the House of Commons and in this House. However, discussion is different from being able to amend a Bill. Will amendments be allowed when the Bill is discussed in the House of Commons and in this House, and what status will they have in relation to the treaty? Will the discussions and decisions take place on the basis of free votes? If they do not and if the Government use their majority, they, not Parliament, will ratify the treaty. So will the Government allow a free vote?

Finally, are the Government able, and do they intend, to use the Parliament Act if this House makes amendments and perhaps agrees on a referendum? Are the Government able to use the Parliament Act, and will they do so, or will this House have a real role in deciding the outcome of the treaty?

My Lords, I trust that your Lordships’ House will have a role in determining the basis of the legislation and the treaty, but I believe that it will agree with the Government and ratify the treaty as well. I say that on the basis that I expect there to be a lengthy and full debate. As I understand it, the legislation will be short. However, I expect a large number of amendments to it. Therefore, our deliberations may be long. Noble Lords will have opportunities to discuss amendments and to vote as usual, if I can describe it as such. That will also be the case in another place. It is the Government’s policy. We have agreed with the ratification process and determined our red lines. We are comfortable with the position in the context of the UK interest. Therefore, the vote will be on the Government’s proposition that we ratify the treaty.

My Lords, will the noble Baroness develop a little what she said about the foreign policy aspect of the treaty? Am I right in saying that common European action on foreign policy can get under way under the treaty as now only when there is a unanimous decision that it should do so? Is it right that the main change in this sphere, and I am not talking about other spheres, is that instead of having two spokesmen, one in the Commission and one outside—Solana—the European Union will have one better equipped to do the job, which will be to act after the unanimous decision of member Governments? Is it not right that since the Iraq debacle, when Europe split to the credit of nobody, we have been increasingly acting as Europeans, almost always in partnership with the United States, whether in the Balkans, Palestine, Iran or Darfur? On the basis that I think the noble Baroness was describing for the future, is this something not to be dreaded but actively encouraged?

My Lords, the noble Lord is absolutely right. Under the reform treaty, member states and the Council will set the policy; decision-making will indeed be by unanimity. The noble Lord is also right that the High Representative for Foreign Affairs and Security Policy combines the previous roles of the High Representative for the CFSP, Mr Solana, and the External Relations Commissioner, Ms Ferrero-Waldner. Therefore, the noble Lord is entirely right.

My Lords, does the noble Baroness the Leader of the House agree that the British public are much more European minded than the Sun newspaper would have us believe and that they are much more mobile in Europe, as a lot of British people live in continental countries? The whole scene now means that the Government must catch up with the general sensible public opinion in this country. Will the Leader of the House promise solemnly to accede—not just acknowledge today—to the earnest request of my noble friend the leader of the Liberal Democrats that the Government cease to be on the defensive as these lengthy debates take place, because the danger is that they will encourage insurrection at the margin if they go on talking about red lines and all the negative and defensive aspects? Now is the time to sell Europe. Mr Murdoch pays only a very modest proportion of corporation tax in this country.

My Lords, all I can say is that when I was in charge of civil justice measures I used constantly to talk about the need to look at how people live, work, travel and study in the European Union, and the increasing numbers of people who do so. I talked about how all our efforts should be on making it possible for our citizens to operate in Europe as easily as possible and on making sure that the legal framework in which they operated worked for them, whether purchasing goods or claiming money back and so on. In a civil justice sense, I feel very strongly that it is important to do that. The noble Lord is right that it is important that, as well as dealing with the issues that noble Lords are rightly concerned about, we are making it clear that this is good for the UK, for the UK economy and for our ability to tackle some of the big issues that confront us. We have to think about this in the context not only of ourselves but of ourselves within Europe and of Europe in a globalised economy.

My Lords, can I press the noble Baroness on an answer that she gave to the noble Lord, Lord Stoddart? It concerns the basic ground rule against which our debates and the debates in the other place will take place. She said that we will be able to look at this treaty in detail. The Statement welcomes the opportunity to examine the protocol and the Charter of Fundamental Rights. It welcomes further scrutiny by the House of the foreign and security policy and of the treaty as a whole. The noble Baroness, Lady Williams, implied that we would be able to change the detail of the treaty on those matters. Can the noble Baroness, Lady Ashton, confirm that we cannot change anything? We can debate it for as long as we like, and we can discuss it at all hours of the night, but, in the end, we will either have to accept the whole thing or send it back for renegotiation in Brussels.

Finally, I do not hold it against the noble Baroness, whom, as I think she knows, I hold in great affection, but this Statement is a masterpiece of slippery EU deception. Entirely missing from the Statement—I hope that she will agree—is the fact that from now on the Council must put the interests of the European Union first. That is a huge change, and it is new. It is not in the Statement. I want to ask her about the passerelle clause. From now on, the treaty can be changed by unanimity in the Council, but no further changes need ever come back to national Parliaments, so what is the value of the embargo on future changes? I would be grateful for answers to those points, because that would set out where we are starting from.

My Lords, the noble Lord is extremely kind, but there is other business to be completed in your Lordships’ House today. I, too, hold the noble Lord in great affection, but we will leave that there for now.

First, it is very important to recognise that this legislation will be put forward by the Government to ratify the treaty. The legislation, as I understand it, will be quite short, but there will be the opportunity to table amendments, which will enable noble Lords to look at every aspect of the proposed treaty, and I know that noble Lords will do so. It is government legislation, and the Government are putting forward the legislation to ratify the treaty. If your Lordships’ House and another place choose to amend the legislation, the noble Lord is correct in saying that it would then need to go back, because the ratification would be contained in agreeing the legislation before your Lordships’ House. That is probably not that unusual, and that will be the system.

As for the passerelle clauses, passerelle is a construct by which you can move from unanimity to qualified majority voting. It is a technical change. You can move to it only if there is unanimous agreement on the Council all 27 member states agree that a measure should now be taken forward by qualified majority voting. That is a technical ability for which safeguards are already built in. We will debate this at greater length, but that is what a passerelle is.

Local Government and Public Involvement in Health Bill

Proceedings after Third Reading resumed.

Clause 56 [Electoral Commission and Boundary Committee: reviews and recommendations]:

5: Clause 56, page 29, line 33, leave out “an appropriate” and insert “a divisible”

The noble Lord said: My Lords, in moving Amendment No. 5 I shall speak also to Amendment No. 6, which is grouped with it and is effectively part of the same amendment. The amendments address a fairly small issue which has not yet been sorted out satisfactorily—a constitutional matter, though one which is perhaps rather less weighty than those which the House has been discussing in the past hour. It is about the arrangements for electing councillors in a relatively small number of, usually, small authorities. The Bill sets out the background to the way in which the Boundary Committee and the Electoral Commission will look at whether councils elected by thirds or by halves can have single-member wards or, if the councils are elected by thirds, two-member wards. However, this is really about single-member wards in rural areas.

We had much discussion of this issue in Committee and the Minister kindly explained the Government’s thinking, which seemed a little confused. She said that the Government felt strongly that when a council elects by thirds, it is best that each ward should vote at each election, allowing electors in all parts of the district to vote at the same time and to have an equal chance of influencing the overall composition of the council. I am talking mainly about non-metropolitan district councils and some unitaries. However, she said that the Government did not wish to make that mandatory and that it would be a matter of looking at the specific circumstances in each council when a boundary revision took place.

We are talking mainly about single-member wards in small village communities in rural areas in relatively small councils. In such areas there are many single-member wards in councils that elect by thirds. I am not sure exactly how many there are, but 80 non-metropolitan districts elect by thirds, of which at least half have single-member wards. The arguments on each side are this. Some years ago, the Electoral Commission produced a report that, in a fairly academic way, said that, ideally, all electors should take part in each election. On the other hand, single-member wards work well in some rural areas because they allow the relationship between the councillor and the rural village to be much stronger. We have single-member wards in such places, simply because during past boundary reviews this was thought by local people to be the best way forward, due to the relationship between these rural areas and councillors. Multi-member wards would be geographically large, and it would be better to have smaller wards with fewer councillors.

The purpose of tabling the amendment at this late stage in the Bill is to try to get the Government to give a clear statement of their thinking and what approach will be taken if there is a Boundary Committee review in certain authorities. My reading of Clause 56 is that there will be a very clear presumption in favour of three-member wards—or two-member wards in areas that elect by halves. I am not clear what the exceptions to that might be. The amendment tries to take out of the equation an assumption either way, and tries to put on to the statute book a situation in which local opinion will count and the local circumstances will count in each case. It tries to take a balanced view.

I am therefore trying to take out the word “appropriate”. Although I understand that the way in which the word is used in the clause can be regarded as just a technical matter—whether it is appropriate to have two or three, according to how the council elects—the word is full of value judgments, and people will read that wording as though it is appropriate to have either a two-member or a three-member ward but not a single-member ward. I am trying to replace the word “appropriate” with the word “divisible”, a totally non-judgmental word that is already in the Bill, to describe the situation in the wards concerned. So in one sense this is a very technical matter, but in another sense it is very important.

This is one of the proposals in the Bill that people on the ground simply do not understand are being made. People will find out too late that single-member wards in rural districts—which they have become used to, which have become accepted as part of the local political scene and which they want to continue—may no longer be possible because what they will see as an obscure clause in the Bill was passed and no one noticed. I am asking the Government to notice and to put the clause on a more even keel. I beg to move.

My Lords, I hope I can reassure the noble Lord. I appreciate that this is the first opportunity we have had to discuss his concerns because this amendment was not moved on Report, so I hope I can take him through the Government’s thinking in some detail. We do not believe there would be any benefit in applying the noble Lord’s amendment as it would have no material effect on the Bill. The word “appropriate”, which appears in Clause 56(2), is clearly defined in Clause 56(3).

The noble Lord asked me to clarify the Government’s reasons for introducing these provisions and I am happy to do so. I remind the House that decisions on electoral arrangements are matters for the Electoral Commission following recommendations made to it by the Boundary Committee for England. It is therefore for those bodies to decide what the number of members per ward should be when conducting electoral reviews. I know that the noble Lord is well aware of that.

The Government have brought forward Clause 56 because we believe that where community identities can be represented, effective and convenient local government provided and equality of representation delivered, it is desirable that all local government electors should be able to vote in all local government elections in their area. As I said in Committee, the Electoral Commission stated in January 2004 that it was fundamentally unfair and, in their view, unacceptable that within an individual local authority some electors should have fewer opportunities to vote and influence the political composition of the authority than their neighbours in a different ward. Where there are elections by halves and the wards have two councillors, and where there are elections by thirds and the wards have three councillors, equity of opportunity to electors is provided at the ballot box.

Having said that, I can deal with the noble Lord’s specific concerns. If there are elections by thirds and you have three-member wards in the area, all electors will have the opportunity to influence the composition of the council at each election. We believe that that is desirable. Where there are single-member wards and elections by thirds, electors will be able to vote in only one of the three elections held during a four-year electoral cycle. We believe that, where it is possible to avoid this situation, it is desirable to do so.

The noble Lord asked us to clarify when single or two-member wards might be recommended where there are elections by thirds. As I have already explained, decisions in individual areas are for the Electoral Commission to make.

I hope that the rationale behind Clause 56 will be seen as straightforward. It has been drafted to ensure that the Boundary Committee and Electoral Commission will be able to continue to reflect the individual circumstances in each local authority area. The statutory criteria within Section 13 of the Local Government Act states that the committee and commission shall have regard to the need to reflect the identities and interests of local communities, the need to secure effective and convenient local government, the need to secure equality of representation and the desirability of securing that each ward in the district returns an appropriate number of councillors.

There is a distinction between “need” and “desirability”. We have ensured that having the appropriate number of councillors per ward is desirable. If—I think that this is the situation that concerns the noble Lord—the Boundary Committee and the Electoral Commission cannot reflect the community identity and interests of an area and provide equality of representation and effective and convenient local government while providing for the appropriate number of councillors, then we would expect them to recommend a different number of councillors. We agree with the noble Lord, Lord Greaves, that it is important that electoral arrangements reflect the local circumstances. If, having conducted an electoral review of an area with elections by thirds, consulted local people and considered the evidence before it, the Boundary Committee decides that it is not possible to meet the statutory criteria with anything other than two-member wards, it will be able to recommend that.

We strongly believe that the Boundary Committee and Electoral Commission should at least be required to consider—I emphasise “consider”—whether it is desirable, when weighed against the other statutory criteria, for every elector to vote in every election. Where there are elections by thirds and the Boundary Committee can recommend a two-member or three-member ward and the other statutory criteria can be met by both, we believe that it would be desirable for a three-member ward to be recommended as it would allow the electors in that ward to vote in every election.

Finally, I clarify that this clause does not apply to councils which hold whole-council elections because, where those elections are held, every elector votes in every election once every four years. Noble Lords will recall that councils operating whole-council elections can make a request to the Electoral Commission for an electoral review to provide for single-member wards under Clause 55, if they so choose.

I hope that I have successfully explained why the provisions in Clause 56 have been brought forward. The noble Lord said that this is a small issue but we have tried to give it the justice that it deserves. I appreciate his concern and have attempted to emphasise the important roles of the Boundary Committee and Electoral Commission. I hope that, with that full explanation, the noble Lord will feel able to withdraw his amendment.

My Lords, I am grateful for the Minister’s response and for the effort that she has made to engage in a proper discussion of the different issues. I still do not think that the Government have tackled the real questions of community interests and identity which lie behind this. I am grateful for the assurance that “appropriate” and “divisible” mean the same thing in this context and that it is non-judgmental in that sense. That will help.

It is down to the Boundary Committee and the Electoral Commission to come up with recommendations, and they make those recommendations in the context of the legislation. There is absolutely no doubt that if the balance has not been shifted entirely to one end of the spectrum—and I understand from the Minister’s comments that that is the case—it has nevertheless shifted some distance along. If this provision is passed, it will not be where it was. That continues to concern me.

I know that the Electoral Commission said that it is fundamentally unfair and unacceptable for some wards not to poll when others do. I have only ever heard that argument from the Electoral Commission. I have never heard anyone in areas that poll by thirds and which have single-member wards in rural areas complain about it. They ask questions such as, “Are we up this year?”, and “Why not?”, but nobody is marching in the streets waving placards about the issue. It is an academic issue that was invented by the Electoral Commission when it produced this report—which, frankly, everyone thought had been put on a shelf and forgotten about. Although it is a small issue, it is a big one in the 50 or 60 local authorities where it will apply and where in future they will find that the system has changed. And they may not like it. There will not be a huge amount of bother and people will not march in Whitehall with placards when it happens, but some people in some places will be very upset by it. Despite what the Minister has said, which is helpful, I think the Government have been misguided in the wording of this clause.

I shall not press the matter further today. I am not someone who keeps bound copies of Hansard around the walls of my house but occasionally I mark and file away copies in the hope that I will remember where they are when these issues are raised. This is one such issue and I can assure the Minister that her words today may be quoted in the future. I thank her for her answer and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 59 [Change of name of electoral area]:

7: Clause 59, page 32, line 19, leave out paragraph (b)

On Question, amendment agreed to.

Clause 62 [Executive arrangements for England]:

8: Clause 62, page 35, line 28, leave out subsection (8)

On Question, amendment agreed to.

Clause 63 [Discharge of functions]:

9: Clause 63, page 36, line 7, at end insert “or”

10: Clause 63, page 36, line 8, leave out from “(England),” to end of line 9

On Question, amendments agreed to.

Clause 64 [Changing governance arrangements]:

11: Clause 64, page 38, leave out line 30

12: Clause 64, page 38, line 35, leave out from “executive,” to end of line 36

13: Clause 64, page 38, line 44, leave out “or elected executive”

14: Clause 64, page 39, line 10, leave out “or elected executive”

15: Clause 64, page 40, line 38, leave out “or an elected executive”

16: Clause 64, page 41, line 9, leave out “or an elected executive”

17: Clause 64, page 41, line 21, leave out from beginning to end of line 22

18: Clause 64, page 41, line 33, leave out from beginning to end of line 38

19: Clause 64, page 41, line 39, leave out “or elected”

20: Clause 64, page 41, line 43, leave out from “executive” to end of line 44

21: Clause 64, page 42, line 3, leave out from “mayor” to end of line 4

22: Clause 64, page 42, leave out line 15

On Question, amendments agreed to.

Clause 66 [Elected mayors]:

23: Clause 66, page 43, line 37, leave out subsection (2)

On Question, amendment agreed to.

Clause 68 [Power to make incidental, consequential provision etc]:

24: Clause 68, page 47, leave out line 20

On Question, amendment agreed to.

Clause 70 [Interpretation]:

25: Clause 70, page 47, line 40, leave out paragraph (a)

26: Clause 70, page 48, line 3, leave out paragraphs (c) and (d)

27: Clause 70, page 48, leave out line 8

28: Clause 70, page 48, leave out lines 11 and 12

On Question, amendments agreed to.

Clause 74 [Further amendments & transitional provision]:

29: Clause 74, page 50, line 26, leave out “Schedule 5 (new arrangements for executives: transition provision)” and insert “Schedule (New arrangements for executives: transitional provision)”

On Question, amendment agreed to.

Clause 76 [Appointed councillors]:

30: Clause 76, page 55, line 35, after “appoint” insert “not more than the specified number of”

The noble Baroness said: My Lords, on Amendments Nos. 30 to 32, I return to the question of appointed parish councillors. Noble Lords will recall that we on these Benches have considerable concerns about this Bill introducing into local government a new category of councillors: appointed councillors. From the start, we need to emphasise that town councils, including parish councils, are a tier of local government and should not be treated as subordinate or lower quality in any way. We therefore need to take any provisions applying to them very seriously indeed.

The National Association of Local Councils does not support this measure. It has said that, while it will work with the Government to make it work, it does not particularly approve of it. I imagine that the national association recognises that it is important in localities that the local council enjoys the moral support of the community it serves. The problem is that it is often not just important to be completely above board, but to be seen to be so. The problem with the appointment process is that there is always a danger that it will be said in local areas that particular individuals were appointed because of who they know or because they already had friends on the council. It is going to be difficult, both for them as individuals and the for the parish council as an entity, to deal with this new category of appointed councillors.

There have been some inconsistencies in remarks from the government Benches. Like my noble friend Lord Greaves, I have been re-reading Hansard. First, through the debates in Committee and on Report, I am still unable to get any sense of who wanted this provision—who has requested it—and what its genesis is. It does not appear to have come from the National Association of Local Councils. Local councils are currently able to use co-option, which is done fairly frequently in areas where, for example, insufficient people put themselves forward after a set of elections; sometimes members are co-opted to make up the numbers. The principle of co-option is well understood, but it is not clear why this new category has appeared. In Committee, the noble Baroness, Lady Crawley, said:

“we should make the difference clearer between those who are elected and those who are not”.—[Official Report, 11/7/07; col. 1480.]

We currently have co-opted and elected. The Bill introduces a third category, and I fail to see how the noble Baroness can claim that introducing one makes it clearer to anyone.

I have repeatedly asked the Government to explain what an appointed councillor will be able to do that a co-opted councillor will not. The answer I have had is that appointment will be for those who are not eligible for co-option; the one example has been for under-18 year-olds, who can be appointed to a council. I am sure that that is very well and good, although it will be interesting to see how many are in fact appointed to parish councils in a year or two’s time. Beyond that, the Government have not been able to give any examples of the sort of people who could come forward for appointment and not co-option. I am concerned about, for example, whether people will still have to be resident in the area or whether they could be drafted in from some distance outside.

There is another inconsistency because, although it is not in the Bill, we have been led to understand that one of the criteria by which a parish council will be judged good enough for quality parish status will be the health of its governance arrangements. Again, it is difficult to get a sense of good governance arrangements and mandate if a number of the councillors are going to be appointed.

We do not know how many people will be allowed to be appointed on to a parish council. In Committee, my noble friend Lord Greaves asked the Minister whether it is going to be a third. The Minister said that the Government imagined something rather less than a third. The point is that we do not know because it is not in the Bill and is left to regulation.

Despite the clearly stated reservations of the delegated powers sub-committee, the negative procedure will be used when the secondary legislation comes through. That means very low level parliamentary scrutiny of the details of the Bill. We on these Benches feel that it would be better to have in the Bill at least the modest provision that the number of appointed councillors will always remain very small. I beg to move.

My Lords, we are not wholly against appointed councillors, and we have not been. However, we need to be sure that safeguards about this will appear in secondary legislation. I assume—but maybe I am incorrect—that there is a difference between co-opted and appointed members. In general, members are co-opted on to specific committees, such as social services or education, because they have specific expertise. Appointed members could be used to fill places when there is a not a full slate of candidates at an election. We want reassurance that appointed councillors will not be supernumerary to the council to any great extent and that they will make up gaps that have not been filled during an election or there will be a cap on the number that can be appointed. We need reassurance.

I am not as strongly against this as the Liberals, and I shall not support them if they go to a vote, but we need to be sure that secondary legislation will spell this out in the sort of detail required to answer the questions that have been raised. I do not think you can have appointed councils. If there is a parish council of 25, it is clearly ridiculous to have 25 appointed councillors. You either have to have a limited number to make up the 25, or it has to be said that there cannot be more than two or three, as is the case with co-opted members. We seek reassurance from the Minister that there will be proper controls over this and proper structures by which appointed councillors can be appointed. The trouble about under-18s is that they become 18 very quickly, so whether they would be allowed to carry on once they are over 18 is another question.

My Lords, I hope that I can offer the noble Baroness, Lady Hanham, the reassurance that she is looking for, but I feel that I will disappoint the noble Baroness, Lady Scott. I am aware that she is unhappy with these proposals, and I hope that I can reassure her. We had full discussions on this matter in Committee and on Report, and I support the comments made by my noble friend Lady Crawley at earlier stages of the Bill. I shall reiterate a couple of her comments, but we have discussed this principle.

When we considered this clause in Committee, my noble friend Lady Crawley gave assurances about the regulations that we have in mind for this clause. In particular, she said that,

“the regulations we will bring forward will ensure that the number of appointees in any parish council can only be small. By small, I mean no more than one or two in most councils. The noble Lord, Lord Greaves, talked about larger market town councils. We would consider a figure of three or four appropriate for such councils”.—[Official Report, 11/7/07; col. 1484.]

She was clear that we are talking about a small number of appointees.

We have also said that we are working with the sector on the regulations. I believe that they will offer the proper safeguards and controls that the noble Baroness, Lady Hanham, is looking for. It is important that they are being developed with the sector. That is continuing, and we want to establish a clear view on this before bringing regulations to this House for full and proper scrutiny, if that is what the House wants to see. In those circumstances, having stressed that we have discussed this extensively already, I am not persuaded that it is either necessary or desirable to put these specific rules in the Bill.

I believe that there is actually not very much between us. I understand that the noble Baroness does not support this measure, but, given that we have already decided that the measure is staying in the Bill, I would prefer it if the Government could work through the details properly with organisations representing parishes and town councils.

I will deal with some of the specific points raised. We need to be clear that co-optees are co-opted to a vacant parish council position, and that appointees—although we are talking about a small number—would be appointed for a shorter period of time. On the point that an under 18-year old is not under 18 for very long, we would not expect them to be appointed for more than a year. I think it is very clear that councillors who are co-opted become councillors, whereas with the development of the regulations we would envisage that appointees would not, for example, be expected to chair important committees.

The role of the appointed parish councillor is, as we have said in the past, to ensure that particular skills can be brought to the council where it feels they are lacking; to deal with an issue about diversity if the council feels that it is lacking in a particular diverse group; and, as we have heard, to involve young people. This route could be used to ensure that young people become involved in a parish council.

The noble Baroness, Lady Scott, particularly pointed out that the National Association of Local Councils does not approve of this measure. I am advised that, particularly when we are talking about the involvement of young people, 16 to 18 year-olds, there is support for the use of the appointed route to promote the involvement of young people.

There is support for this measure. I recognise noble Lords’ concerns that we need to have in place proper controls and safeguards. That is why the Government are working with stakeholders to develop regulations that will be brought before both Houses. We are talking about small numbers. I understand that people would be concerned if parish councils were going to be swamped by appointees; but that is absolutely not going to be the case. This is about adding value to parish councils should they wish to do that.

With that reassurance I hope that the noble Baroness will consider withdrawing her amendment.

My Lords, before the Minister sits down, can she clear up a slight confusion over whether these regulations will be under the affirmative or negative procedure? The noble Baroness, Lady Scott, was quite clear that it would be negative and therefore the matter would not come back to the House. The Minister has now said that it will be considered by the House. It would help to know what the procedure is going to be.

My Lords, I am grateful to the noble Baroness. The Delegated Powers and Regulatory Reform Committee certainly had something to say about the fact that these changes would be brought forward without the House having a full opportunity to debate them.

I want to remark briefly on the comments made by the noble Baroness, Lady Hanham. Her experience on principal councils is the reverse of the situation in parish councils in that they do not co-opt people to serve on sub-committees but do so in order to make up the numbers where an insufficient number of people have put their names forward. I am not clear from our debate about the status of these new councillors with regard to the number of councillors on a parish council. Parish councils cannot increase or decrease their size willy-nilly they are set in local statutes. They have to apply to the district council to vary the numbers. None of our debates has made it clear where appointed councillors would fit in. It is very clear where co-optees stand, but this is a new category and we do not know the position. I am concerned not just about the principle of appointment, but the practice. It may be possible for appointed councillors to replace elected councillors. We have not had a full debate about that.

I remain profoundly unhappy about this measure. However small, parish councils are local government units. As I have said before in debates—

My Lords, I should like to try to make this clear. We do not envisage that appointed councillors will replace co-opted councillors. A co-opted councillor takes a full councillor position. Appointed councillors are not the same; they have a shorter term of office which will be set out in regulations. They are extra to the council and will be there to add skills and experience and to enhance diversity. They are not there to replace co-opted councillors, and certainly not in any way to replace elected councillors.

My Lords, I thank the noble Baroness for clarifying the point. Nevertheless, I and my colleagues on these Benches remain concerned that what we have here, albeit on a micro scale, is a constitutional change. It introduces appointees to what have previously been democratically elected bodies, and to leave all the detail to regulations is not satisfactory. This provision has been brought in with just a few lines in the Bill, with the detail left to secondary legislation. As we know, parliamentary scrutiny is not always of the quality that your Lordships would like to see. Therefore I wish to test the opinion of the House.

Clause 76 [Appointed councillors]:

[Amendments Nos. 31 and 32 not moved.]

Clause 87 [Constitution of new parish]:

33: Clause 87, page 61, line 9, leave out from “aggregating” to end of line 10 and insert “one or more unparished areas with one or more parished areas.”

The noble Baroness said: My Lords, this is a technical amendment to give effect to the policy that my noble friend Baroness Crawley set out in Committee and on Report. At Report, the noble Lord, Lord Greaves, tabled Amendment No. 163A, to what is now Clause 94, on recommendations to create parish councils. My noble friend explained to the House that Clause 94(3) does not apply to existing parishes and, therefore, where an existing parish with a parish council has 150 or fewer electors, it would be able to continue to have a parish council.

The noble Lord also asked at Report whether an existing parish, if it were altered, would be treated as a new parish or an existing parish. As the Bill is drafted, an altered parish would in most cases be treated as an existing parish, because the alteration of existing parishes is dealt with under Clause 88. However, a loophole in Clause 87 has been brought to our attention, principally by the noble Lord and his thorough questioning, whereby an existing parish which has an unparished area added to it would have been treated as a new parish. We are therefore amending Clause 87 to close this loophole, so that an existing parish that has an unparished area added to it will be treated as an existing parish under Clause 88.

This is all very technical, and I hope that I am not being boring and confusing, but I can assure the House that the effect is to ensure that where parish councils currently exist in a parish with 150 or fewer electors, the parish council can continue in existence. The amendment ensures that the Bill delivers the policy objective that we set out in earlier discussions. I hope that noble Lords will find the amendment acceptable. I beg to move.

My Lords, I read these government amendments and thought they were fairly sensible. I could not explain the detailed technicalities as the Minister has done but I congratulate the Government on seeing sense on the matter. This kind of thing will affect only a few people in a few places on a few occasions, but it is important. In view of what the Minister said, I shall definitely keep on file a copy of today’s proceedings in Hansard.

On Question, amendment agreed to.

34: Clause 87, page 61, line 13, at end insert—

“but the aggregation of one or more unparished areas with a single parish is not the constitution of a new parish.”

35: Clause 87, page 61, line 14, after “(2)” insert—

““parished area” means an area which—

(a) is a parish, or(b) is part of a parish.”

On Question, amendments agreed to.

Clause 88 [Existing parishes under review]:

36: Clause 88, page 62, line 4, at end insert—

“(b) references to the alteration of an area of a parish are references to any alteration which is not the constitution of a new parish (within the meaning of section 87(2)).”

On Question, amendment agreed to.

Clause 94 [Recommendations to create parish councils]:

37: Clause 94, page 64, line 11, at end insert—

“( ) But subsection (3) does not apply if any part of the parish mentioned in subsection (1) is currently—

(a) a parish which has a council, or(b) part of such a parish.”

38: Clause 94, page 64, line 12, leave out “In any other case” and insert “If neither subsection (2) nor (3) applies”

On Question, amendments agreed to.

Clause 106 [Duty to prepare and submit draft of a local area agreement]:

39: Clause 106, page 71, line 44, at end insert—

“( ) If a responsible local authority so requests, the Secretary of State shall make a direction under subsection (1).”

The noble Lord said: My Lords, in moving this amendment I want to emphasise on behalf of my noble friends that we take the Government’s intentions as stated very seriously and at face value. Their words at least are encouraging. We want to be sure that there is recognition of what they are intending for the important future relationship between central and local government. I have attended the House throughout various stages of the Bill and have noted how often the Minister, who is in her place, prayed in aid flexibility. I have not done a check but I suspect that that word has been used on almost every occasion that she has come to the Dispatch Box. Now we turn to the vital question of how flexibly the Government intend to treat the local area agreements. As I am sure noble Lords will recognise, this issue is a crucial part of the Bill at this stage of its parliamentary consideration.

If local area agreements are to be as flexible and effective as we must all hope they will be, they must be dynamic, locally responsive and constantly monitored by the partners themselves—not by the Government or outsiders—to ensure that they are appropriate to changing local needs. That must be true especially for the new unitary authorities. The Minister will recognise that the Bill had its inception and most of its consideration before we were even aware of who might be considered for new unitary status. It is therefore extremely important that this exercise proceed with careful consideration alongside that exercise and that we have in place unitary authorities that are able to take full advantage of good local area agreements.

Although I have in mind specifically my own part of the country, Cornwall, what I have to say may be appropriate also to Durham, Northumberland, Shropshire and Wiltshire, which are all major county councils with considerable responsibilities. As they attain unitary status—which is not yet confirmed, though we hope it will be in a matter of weeks—there will be a very good case for ensuring they are able to take full advantage of the Bill’s provisions on LAAs.

Noble Lords will note in Clause 104, which has been accepted on all sides of the House, the remarkable number of partner authorities. There is a huge range, and rightly so. We want the principal local authorities—the main partners—to be able to work closely with a great many other deliverers of local services. I know that there is general acceptance across the parties, at local and national levels, that this opportunity must not be missed. In the words of the chairman of the Local Government Association, we should all be,

“pushing the boundaries of LAAs for more devolution”.

Surely the Government must have that in mind.

It is already envisaged that there should be strong local partnerships with the police and with health delivery agents. I have always thought it extraordinary that although the public rate the National Health Service and the prevention of crime as the most important local considerations, those are the services which are not subject in any way to local accountability. I used to be a member of a police authority because I was an elected councillor; these days, police authority members are appointed by the Home Secretary. If you want to complain about the National Health Service you will have to go to the Secretary of State, the only democratically elected accountable person. So this is a small step towards greater accountability at a local level and I am sure that we all welcome it. It is also true that the Bill and the Government’s proposals provide for a transfer of accountability for education of 16 to 18 year-olds from the learning and skills councils to top-tier councils. That, too, is a very healthy step.

However, what about transport planning and economic development? It is extremely important that we should see those issues in this context as well. In an interesting Statement, the Minister for Communities and Local Government, Mr John Healey, said:

“The report also reflects the Prime Minister’s vision of a modern democracy, in which power is exercised at the lowest level, and those with power are held more clearly to account”.

He continued:

“We will require regional development agencies to delegate funding to local authorities and sub-regions whenever possible so that they play a more strategic role”.—[Official Report, Commons, 17/7/07; col 161-62.]

My colleague in the other place—indeed, my successor as Member of Parliament for North Cornwall—said to the Minister:

“Will he take seriously the aspirations of the people of Cornwall to have a greater say over their affairs, especially given the ambitious proposals for a unified structure of local government in the area? Also, will he look again at the case for a locally accountable Cornish development agency, in light of the important convergence funding from the EU?”.

The Minister, Mr John Healey, responded:

“Cornwall still faces some significant economic challenges. It has been greatly transformed by the objective 1 funding that it has received, and by some of the measures that the South West regional development agency has put in place. I take the hon. Gentleman’s comments as another late representation to be considered as part of my work on local government restructuring.”.—[Official Report, Commons, 17/7/07; col. 172.]

My noble friends and I wish to hear a clear statement today in the light of the fact that these changes in the relationship between local and central government are happening outwith this Bill and the recognition that this legislation relates to those changes.

Another important development in recent weeks is that the Treasury—which has never before been seen as particularly keen on devolution—has taken the lead in publishing so-called proposals for a sub-national review. Where in the country can one see a distinct, historic and geographical identity? Areas such as Cornwall and Northumberland are clearly sub-regions in that sense. Unlike the Conservative economic regions, which are so anomalous in relation to these problems and so diverse internally that they do not make much sense in this regard, they are not artificial creations.

Subsidiarity, an ugly word but an important concept, is now accepted on all sides of your Lordships’ House as an extremely important part of this legislation and the Government’s other proposals. Perhaps we should define subsidiarity and—in the context of taking decisions as close as possible to those whom they affect—get a government statement on precisely how the LAAs will be initiated. They should not come down from Whitehall but should come up from the partners on the ground.

I hope that the new local area agreements will be used as the excellent test beds they could be for more local decision-making in the future. Why not ask them to undertake pilot projects in important directions? Why not try out a local income tax to replace the failed Conservative council tax model? A bit more pilot experimentation in this field might save the Government a great deal of trouble.

At the centre of the issue, the amendment and this part of the Bill is our belief that the Government’s talk of empowering local communities and individual citizens, excellent though it sounds, must mean empowering elected councils and councillors. In the very interesting The Governance of Britain, the first Green Paper produced by the new Prime Minister in the summer, the executive summary said:

“The Government will … enable local people to hold service providers to account”.

Paragraph 179 said:

“The Secretary of State for Communities and Local Government will now work with the Local Government Association to establish a concordat to govern the relations between central and local Government”.

Concordats are not always a terribly successful method of getting agreement. Sometimes they are challenged, even by Members of this House. But at this stage, we have no idea what that concordat will mean. What is its relevance in this context? If the Bill does not even give local elected representatives the prime initiative—the prime lead role—in developing appropriate local area agreements for their area, that spells disaster for any attempt to make the proposed concordat an evenly balanced agreement with subsidiarity at its heart.

I hope that everybody in your Lordships' House now agrees that the man—or, indeed, the woman—in Whitehall does not always know best. I hope that the Minister will not take that as a personal challenge but will reassure us that the Government understand the importance of the issue. I beg to move.

My Lords, this is a refreshing return to some of the fundamental principles in the Bill. I could not agree more with the noble Lord in that I do not for a moment believe that Whitehall knows best. The thrust, burden and tone of the Bill and of the debate at each stage of our proceedings has been to reinforce and verify the fact that Whitehall does not know best but is in a more balanced partnership with local government which can reflect the real needs of the local community. That is reflected, in some ways, in local area agreements against the background of the country as a whole and its needs.

The noble Lord was quite right that the Bill is about empowering local communities and local councillors. Various provisions celebrate the role of local councillors and strengthen their visibility. I shall talk about the community call for action in a moment. The Government started this process with the White Paper; and the Roberts commission will now take us there in terms of the quality and scope of the people we want to see in local government and the tasks they have to undertake. Two arguments flow from that: the noble Lord deployed the wider argument in relation to the new unitaries but also about the making of place. So much has been said about place-making in recent months, led by Michael Lyons, who introduced the term. I believe it is powerful and effective to talk about making places; the partnerships which are reflected in the Bill and the local area agreements are about people coming together to say what they want about the place they live in and agreeing on how they deliver that through local government, now working in much more explicit and determined partnerships.

Beyond place-making in the local area, the noble Lord talked about other things that we have addressed in the Bill. How do we work beyond a local area so that the sub-region and all its natural contours can also be reflected in the devolution of power in the making of, for example, multi-area agreements, which will grow from the local area agreements? My honourable friend in another place talked about the disposition of power to make something of the sub-region—transport, of course, has a particular relevance, but there are other factors outside local areas as well.

I agree with the noble Lord; he is right to raise those points. He is also right to remind me of the power of the term “flexibility” and its incidence in our discussions. There is nothing more flexible than the local area agreement. It represents degrees of flexibility between partners and between local partners and local government through regional offices in the design of the future. He referred to dynamism and the responsiveness to local need and local vision. That is absolutely right. Considering the partnerships, the nature of places, the diversity and strengths as well as the real needs and challenges gives us an understanding of what the local area agreement is really about.

That takes me to the question in the amendment about the nature of the debate on local area agreements. Who makes the local area agreement and on what terms? This will come up in the next amendment. The essential point about the local area agreement, as we have discussed at every stage, is that it is locally driven. Its most distinctive feature is a negotiation between local partnerships and central government. It will be the only place that central government and local government will meet in the future to discuss the relationship between the overarching needs of the country as a whole, the economic, social and environmental pressures that we face, and the local area.

The idea that there is a built-in conflict or opposition between national and local objectives is contrary to common sense and to practice. That practice has already been tested in the 17 local partnerships which are developing. Whether the needs of the nation include better healthcare or greater success in schools, they will be settled at the local level to reflect the real challenges that that local community faces. I believe that the Bill strikes the right balance between local authorities and partners. We cannot take central government out of the picture; it is where local government and national government now meet to discuss national priorities and how they will be reflected in local action.

We have stripped down the number of indicators from 1,200 to 200 and the performance regime has been lightened. Essentially, an agreement should be genuinely driven by what local people want and say they need, working in partnership to deliver it.

Sheffield wants to tackle health inequalities by setting a target to increase life expectancy. It is doing well against the national average; therefore, it may not be necessary to designate this and make it a national target. But Sheffield wants to continue improving health equalities, so it could decide in the course of negotiations to include a more stretching or demanding local target. National government concerned about obesity or care of the elderly—whatever the 200 top indicators will be—will ask local authorities what really matters in the area and what they need to monitor and designate in terms of national ambitions. They will ask the local area to tell them what it thinks is most important so that they can work it out together. That has been happening all over the country over the past three to six months, as people have begun to work through these processes. It is innovative and challenging, but as a result we will get something that the local community can believe in and deliver, recognising that these things matter to all of us nationally.

Amendment No. 39 would allow a draft local area agreement to be initiated either at the direction of the Secretary of State or at the direction of the Secretary of State if requested by the responsible authority. Clause 106, on the other hand, allows only for a local area agreement to be initiated by the Secretary of State. That is more a technical provision than anything else. It is obviously critical that there is a clear and agreed process and timetable by which LAAs will be negotiated and signed off, and introducing two possible routes for initiating an LAA—one at the discretion of the local authority— would cause genuine confusion in the process.

Clause 106 sets out that this process will formally be at the direction of the Secretary of State but we will elaborate on this in guidance. That guidance, significantly, is being developed collaboratively—for example, with the Local Government Association—and will set out the process and the timetable. That is significant because the partnership with LGA runs through the Bill and the noble Lord, who has spoken passionately about Cornwall, knows that local authorities are keen to do this. They see the local area agreement—and, in time, they will come to see the multi-area agreement—as offering huge possibilities of new ways of working and a much better chance of success, whether that is in reducing the rates of teenage pregnancy or in reducing the stubborn pockets of worklessness that we still have in some affluent areas.

With that in mind, I hope the noble Lord is confident that the debate has addressed the issues that he raised and that he will feel able to withdraw his amendment.

My Lords, I am grateful for the Minister’s comments; she has entirely fulfilled my expectation. She has made as mollifying and positive contribution as she has on previous parts of the Bill. However, I worry when I hear that there is a technical reason for what otherwise seems to be a simple statement of the obvious. She says that local authorities will be very much involved in the preparation of LAAs—I understand that—but we wanted to have that in the Bill. She has used all the right phrases to try to make me feel better about this and I appreciate that.

The Minister has spoken of the way in which the partnerships may operate; I accept that. She accepts that sub-regions may well be the right units for looking at transport and economic planning issues; I agree with that. Indeed, I am worried when Ministers say that they absolutely agree with me—it makes me think that perhaps I have made a mistake—but on this occasion I understand precisely why she is saying that. My worry is that it is one thing to say—and this will be on the official record—that this a locally driven agreement, but when we seek to put that in the Bill it appears not to be possible to do so. She said that it is not possible to take central government out of the picture, but that is not what we were intending to do. We simply wanted to make sure that the responsible authority as defined in the Bill should be able to seek an LAA definition.

There is still a flavour of a top-down bureaucratic approach here. I take everything the Minister says and I understand it, but I am sure my noble friends and other Members of your Lordships’ House will want to make sure that when the guidance comes forward it is not just putting on paper a firm conviction that the man or woman in Whitehall knows best. However, I appreciate the care the noble Baroness has taken and the assurances she has given us and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 [Duty to have regard to local improvement targets]:

40: Clause 108, page 72, line 40, leave out “107(2)” and insert “112”

The noble Baroness said: My Lords, I can be reasonably brief. These are Report stage amendments which were withdrawn by agreement because they were confused with others.

The amendments seek to ensure that the Secretary of State does not meddle with any targets once they have been agreed by local authorities. We have bandied around the numbers of targets set by central government. We were hoping that there would be no more than 35; the Minister will not put them in the Bill but we are all assuming that the number will be limited. Once the Secretary of State has set his or her target, these amendments would prevent the Secretary of State arbitrarily changing any other targets within agreements. He will be able to make changes only to national targets, leaving local targets alone. Local authorities have a plethora of targets imposed from central government. Therefore, once central government have resisted the temptation to produce any more, any changes should be limited only to those targets set by the Secretary of State, leaving the local authorities to deal with their own targets. That is basically the amendment. I beg to move.

My Lords, I feel that I have answered most of these amendments previously and I try not to repeat myself. I appreciate the spirit in which the noble Baroness has moved the amendments and the seriousness with which we have debated over the past three stages the relationship between local and central government, but the amendments would have the effect of destroying that partnership by removing the key partner. We would be left with a situation in which local authorities would be dictating to central government what central government’s priorities were, which would be unbalanced and unrealistic.

The most interesting feature of an LAA is the requirement for discussion-based negotiations between local partnerships and central government. We believe the right balance has been struck and that we cannot take the responsibility away from central government; it will be the only way in which central government can signal priorities and involve individual localities. It sits alongside the significant decision to strip down the national indicators from 1,200 to 200, which has been much welcomed by local government. Along with that, the performance regime has been lightened to meet the real risks and challenges and it now has far greater freedom to determine how to meet local needs.

The problem with the noble Baroness’s amendments is that they would pre-judge the negotiations that have already begun and will go on over the next six months. We have already made clear in the operational guidance that we published on 18 September that these new-style LAAs will have to have robust and open negotiation at their hearts. The effect of the amendments would be to try to distinguish prior to the approval of targets the ones which are of local interest and those which are of national interest. We presume a conflict of interest, which I addressed previously, because I do not see why that should be seen to be the case; it is a false distinction. The effect of the amendments will be that from within the draft LAA local partners will need to specify which targets are of national interest.

There is a presumption that the Secretary of State is a tyrannical figure dictating to localities rather than negotiating with them. That is not the case. We are talking here about the role of the regional officers, a collection of delightful and efficient people who are well known in the locality and know the area well. There will be priorities that they will want to tackle and there will be total agreement on the fact that they are both locally and centrally important. As I said, the priorities may be reducing worklessness or may be improving school standards; they will be different in different areas. It will depend on the circumstances of each case whether or not they are designated as national targets. Essentially, those will be the only targets which are reported on because the local targets, the non-designated targets, will not have to be reported on. If we removed the Secretary of State from the process, we would have a purely local agreement. Within that, local authorities would not find themselves totally free of central government’s priorities, health and welfare; what they would find was that central government departments would employ their own individual targets for each authority along with separate performance management, so we would be back to a situation in which there were far more targets and far more—I would not say anarchy—but individual negotiation. We are trying to get away from that sort of situation. In the kindest spirit I suggest that what noble Lords propose is not only unrealistic but actually means that we would have to turn away from those genuine improvements that we have made to reduce the role of local government and which we see now in the LAAs, which introduce a new and better way of doing things and have been welcomed.

I hope that the noble Baroness will accept those arguments. She has been valiant in her championing of local targets and local authorities, as I always suspect she will be, but I hope that she can now withdraw her amendment.

My Lords, I thank the Minister for her reply. We may see government officers in a slightly different light, and I am not entirely sure that across local government the Minister’s bright view will be accepted. However, as she says we have had quite a lot of debate on this matter. It is now going to be a question of sucking it and seeing whether the provision is going to work in the right way. I hope that all the words that the Minister has spoken today and on other occasions to the effect that the Secretary of State will have a light-touch regime will be borne out—and borne out by all those regional officers. That is where the negotiations will take place, so the Secretary of State’s view must be passed down to them. I am sure that it will be, but we shall wait and see. I have taken this as far as I can go and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 [Revision and addition of targets]:

[Amendments Nos. 41 and 42 not moved.]

Clause 111 [Designated targets: revision proposals]:

[Amendments Nos. 43 to 48 not moved.]

Clause 121 [Powers to require information from partner authorities]:

49: Clause 121, page 83, line 25, leave out from “matters” to end of line 26 and insert “in relation to which the committee has functions under or by virtue of section 19.””

The noble Baroness said: My Lords, throughout the passage of the Bill it has been clear that, subject to some discussion of details, there has been a broad consensus that Clause 119 is on the right lines. At the moment, the only councillors who can refer matters to an overview and scrutiny committee are the members of that committee itself. That straightforward measure enables any elected councillor to bring an issue of local concern to the overview and scrutiny committee and have it discussed to see whether a way forward can be suggested. That committee has substantial powers to look into such matters, and elsewhere in this Bill we are adding to those powers. That is a big step forward for the local councillor.

So this is an enabling measure. However, as we have explained many times, we decided not to seek to place a duty on local councillors to consider matters that are put to them by local people, nor to require them to respond. Given the very wide range of issues that councillors have before them, we could not see that it would be sensible to do that. Indeed, we felt—and I think this is common ground—that such a duty would be unsupportable in practice and that therefore it was better to rely on councillors’ good judgment and energy to sift through and, where possible, resolve such issues as they become aware of them. That is all part of a councillor’s normal role, as noble Lords pointed out to me several times, with increasing asperity. Additionally, the new power that we provide will make them more effective local champions—that is, the power to demand committee consideration of problems where they feel it would help.

In this context, there has been continuing concern about the related measure passed by Parliament a year ago but which has not yet been brought into force. That is the part of Section 19 of the Police and Justice Act 2006 that deals with the consideration of local crime and disorder matters by councillors. In that context, Parliament has already taken a different view. This provision also empowered the councillor to take a matter to an overview and scrutiny committee—in this case the committee created by the Police and Justice Act, the crime and disorder committee. However, in addition, we also placed a duty on councillors both to consider all local crime and disorder matters put to them by local people, and to respond.

In broad terms, Section 19 gave the committee two roles. First, it gave a strategic role in that it is required to maintain oversight of the work of the crime and disorder reduction partnerships in preparing and executing crime and disorder reduction strategies for the area. Secondly, it gave a tactical role in that, as I have said, it is required to consider local crime and disorder matters referred to it by local councillors. The power given to local people to demand consideration of such an issue by a councillor is reinforced by a right of appeal, given by Section 19(4), to the executive of the council. That comes into play if the councillor declines to refer the matter to the crime and disorder committee himself or herself. The executive of the council is then required, likewise, to consider the matter; and is similarly empowered to refer it to the crime and disorder committee.

Ministers have argued in both Houses for the distinct treatment of local crime and disorder matters on the grounds that, although obviously more burdensome—and we did not deny that—the complications were justified where matters of community safety were concerned. On the other hand, the local government community, noble Lords in this House and Members of the House of Commons have argued that having two models for community call for action would in practice be too confusing for the public and for local councillors and officers. It has also been argued that the burden that the Police and Justice Act places on councillors will put many councillors under unnecessary pressure and will require support from local officials which will take resources away from work that might add more value. It has been argued, too, that the power to launch an appeal to the executive is possibly an expensive luxury that will take up too much time.

We had some very good debates on this matter at earlier stages and have listened very carefully. We have come to the conclusion that, although we think the scope for confusion is modest, we are persuaded that we should accept the strong views held outside and inside this House and adjust the Police and Justice Act to bring it into line with the provisions in this Bill. That is the main thrust of the amendments I am now proposing, with some minor consequential amendments. To be quite clear, what we intend by way of our amendment is that the power given to a councillor to refer a local crime and disorder matter to the crime and disorder committee will remain. However, the duty placed on the councillor to respond to a person who lives or works in the councillor’s electoral area will be dropped and, therefore, so will the related necessity for an appeal to the executive.

We are minded to change our policy for a reason above and beyond the force of the arguments that I have heard in this House. In addition, we have set out, in the Green Paper entitled The Governance of Britain, an agenda for taking forward democratic and constitutional reforms in future. Some of those proposals are aimed at the local level and will seek to take further empowerment of communities to influence public decision-making. One example is the proposed duty on local authorities to respond to some petitions. All these ideas are to be subject to consultation and discussion in some form or other. For the time being, it seems sensible to clear the ground by making the so-called “community call for action” as simple and consistent as possible, by focusing it entirely on the empowerment of elected councillors to act as advocates for their own communities. Indeed, I would argue that the result might more appropriately be called a “councillor call for action”.

I shall take noble Lords through the proposed amendments. Let me acknowledge that they look a good deal more complicated than the amendments tabled by the noble Baroness, Lady Hanham, and others at earlier stages of the Bill, but this is more apparent than real. In drafting the amendments, we had to keep in mind the fact that the Police and Justice Act created a new and somewhat separate overview and scrutiny regime for crime and disorder. The fact is reflected elsewhere in the Bill, in Clauses 127, 128 and 129, for example. We need to do as little as possible to disturb that, because the arrangements in the Police and Justice Act were designed to provide oversight of a statutory partnership. But we wish to provide for the alignment on community calls for action, so we concluded that the best way to handle that would be to replicate as far as appropriate the provisions of the new Section 21A of the Local Government Act 2000 in the Police and Justice Act.

We have also taken the opportunity to make some other peripheral changes to the handling of local crime and disorder matters. The first is that we have aligned the definition of a local crime and disorder matter more closely with that of a local government matter, so that it is a matter that affects a member’s electoral area or the people who live or work there. The present definition refers to crime and disorder in the area, and this seems unduly restrictive. Secondly, we have made the revised community call for action procedure for crime and disorder available to county as well as district councillors in a two-tier area. The current Section 19(3) applies it only to districts in such an area.

The reasoning behind this was to avoid a situation in which individual citizens could go from councillor to councillor, looking for one who would take a matter up. The change that we now propose brings the procedure for local crime and disorder matters into line with that for local government matters. We are content to rely on guidance to ensure that authorities in two-tier areas should expect to work together, avoiding a situation in which different crime and disorder committees produce conflicting reports on the same issue. I should add that, elsewhere in this Bill, we are providing for restructuring and the result will be that some counties will become unitary authorities. It would be odd if their councillors could bring local crime and disorder matters to their committee but councillors in counties where there are district councils could not. The change that we are making will remove this anomaly.

We have taken the opportunity to make it clear that the local authorities themselves, as well as the responsible authorities comprising the CDRP, are under a duty to consider, respond to and have regard to a crime and disorder committee’s reports. This is consistent with new Section 21B, which we are introducing via Clause 128. It appears to have been an oversight in the drafting of Section 19 originally.

On the amendments, new subsection (3) brings the arrangements for crime and disorder committees, so far as they concern local crime and disorder matters, into line with the Local Government Act 2000 as we are amending it. Those arrangements must enable any member of the authority to refer a local crime and disorder matter to the committee; Section 19(4) defines what that means. It mirrors exactly the provision in Clause 119 for local government matters.

Similarly, subsection (6) mirrors, with necessary modifications, the proposed new subsection (6) of Section 21A. It enables the committee to have regard to any delegated powers that the councillor might have thought of exercising, and provides that it may have regard to any representations that the member may make. Subsection (7) provides for transparency in the committee’s decision-making, in the same terms as the proposed new Section 21A(7). Subsection (8) applies to all the business of the committee, not just to local crime and disorder matters referred by individual members. It therefore preserves the existing provision of Section 19 covering the provision of copies of the committee’s reports to the responsible authorities, but adds that a copy must go also to the member who referred a local crime and disorder matter.

New subsections (8A) and (8B) cover the behaviour of authorities, bodies or persons to whom the committee has sent a report or recommendations, or a copy of them. It preserves the requirements on those organisations set out in Section 19(8) to consider, respond to and have regard to these reports in exercising their functions. New subsection (3) makes consequential amendments within Section 19. New subsection (4) redefines “local crime and disorder matter” to align it as closely as possible with “local government matter” in new Section 21A of the LGA 2000.

New subsections (5) to (7) make minor and consequential amendments to Section 20 of the Police and Justice Act. We propose to delete the “in particular” references to procedure and time limits for dealing with references by individual members to crime and disorder committees. This will further align it with Section 21A of the 2000 Act where, for “local government matters”, we have been content to assume that the “arrangements” that local authorities are required to put in place will cover such matters locally. There are several consequential amendments to Clauses 121, 122 and 123.

Finally, in relation to Wales, the amendment to Clause 242 will preserve the existing position with regard to Section 19 of the Police and Justice Act, Section 53(6) of which provides that Sections 19 and 20 and Schedule 8 come into force in Wales in accordance with provision made by order by the National Assembly for Wales.

I am conscious that that was a long explanation, but given its importance I thought that noble Lords would appreciate having the detail in Hansard. I beg to move.

My Lords, I thank the Minister very much for the effort that has been put into this matter. We have been trying to see our way through it throughout our consideration of the Bill, and the Local Government Association and local authorities are very concerned about it. I understand that the Local Government Association is now content with what has been done. We always thought that it would be right to bring the Police and Justice Act under the local government Bill in this respect. However, reading the provision as carefully as I can, I think that the Police and Justice Act, given the way in which it has been amended, does what the local government Bill would have done—crime and disorder matters have been brought under it.

However, I have a question for the Minister. I seek to clarify that the words “crime and disorder committee” appear in the Police and Justice Act 2006. As regards a local authority, we need to be clear that a crime and disorder committee is a scrutiny committee that oversees crime and disorder. I assume that that will be different in the various local authorities. In some it will be Cabinet overview and scrutiny; in others it will be a specific committee. However, we need to be clear that the local authority will not have to establish a specific crime and disorder committee. I say for the benefit of Hansard that the Minister is nodding in agreement to that view; that will save the Minister from having to respond. I thank her for that.

We are now where we wanted to be; the community calls for action are tied up and can be dealt with in exactly the same way through both these pieces of legislation. Therefore, I need say no more other than again to thank the Minister. We discussed this during the Recess. An enormous amount of work has been done since then, which I very much appreciate.

My Lords, I wish to ask the Minister a question to clarify something in my mind. Where there is a crime and disorder committee by whatever name at a district level in a two-tier area, does the new system mean that references to that committee can be made by either a district councillor or a county councillor? Is that what is being put forward? It seems to me entirely sensible, but it is a question that I should like to be answered. As I understand it, crime and disorder committees in two-tier areas will exist in some form at both the county and district level, and so the right to refer is not being taken away from district councillors at a district level but will apply also to county councillors to that district level committee. Is that the case?

My Lords, before my noble friend responds to the points that have been made, I should declare an interest as a vice-president of the Association of Police Authorities and as a member of the Metropolitan Police Authority. I apologise to your Lordships for this being my first intervention on this very interesting Bill, which I have followed with enormous interest, particularly some of the more arcane points, of which this is no doubt one.

It is a relief to see the marvellous way in which joined-up government operates. I recall that during the debates on the clause that we are now amending in the Police and Justice Bill I sought assurances from the noble Lord who took that Bill through the House that what was being offered in terms of overview and scrutiny and the community call for action would be consistent with the local government Bill that we had been promised would be introduced in this Session. That Bill is now before us. My noble friend Lord Bassam of Brighton assured us that there had been lots of talk between the relevant government departments and that what would be proposed would be consistent. Presumably, we can be assured that my noble friend’s amendment has been discussed with all the relevant government departments and that there is a feeling that this is totally joined up and that everyone is working together on precisely this point.

I noticed that on 6 July my noble friend Lord Bassam of Brighton said on behalf of the Government in respect of this issue:

“The Secretary of State continues to offer assurances that we still believe it appropriate to include the police authority on the overview and scrutiny committee functions, and the regulation-making power in Clause 18”—

whatever that might have been at the time—

“allows for that flexibility”.—[Official Report, 6/7/06; col. 391.]

I should be grateful if my noble friend could clarify whether there will continue to be an expectation that police authority members will be involved in the crime and disorder committee, however it is constituted in any particular local authority. It is doubly important that that assurance is given due to the interesting definition of “crime and disorder matter” that will now be in the Bill.

The definition of a,

“local crime and disorder matter”,

as being a matter that,

“affects all or part of the electoral area”,

means that there is a very broad definition of crime and disorder. For example, if you were living in a remote and rural part of Merseyside, you might feel that the problem of the level of crime and disorder prevalent in certain parts of the city of Liverpool was creating an effect in which policing resources were drawn from your local area to deal with pressing crime problems elsewhere. That is likely to be a common feeling. I recall from my time as chairman of the Metropolitan Police Authority that assumptions were often made in what purported to be some of the quieter London boroughs that resources were being drained from them to deal with problems elsewhere in London.

The effect of this definition is that it will be possible to say that the crime and disorder committee should be discussing everything that relates to crime and disorder in the entire police authority area, because that will affect the resources that are available to deal with crime and disorder in the electoral area concerned.

I am sure that many crime and disorder committees, or whatever they will be called, will have lots of other things to do and will not necessarily do that. However, this definition enables that to happen. Under those circumstances, being able to call on the advice and involvement of someone from the police authority in question who will be able to put those resourcing issues, for example, in a broader context will be an essential part of it. I hope that when she replies my noble friend will be able not only to clarify the question about how the definition is intended to be applied but to repeat the assurance given by my noble friend Lord Bassam of Brighton that police authority membership will be included on such overview and scrutiny committees.

My Lords, I shall start with my noble friend, who speaks as usual with great authority. First, on being joined up, we have tabled the amendment precisely as a demonstration that the Government are very much of the opinion that we should bring the two systems, which were separate, into line with each other. That is a very good example of departments working together for a common cause. My noble friend used a quotation from my noble friend Lord Bassam. We were looking forward to having that debate on Amendment No. 54, which is to be moved by the noble Baroness, Lady Harris, who has similar concerns. I was going to use that quotation and say that it is very much our expectation that the statement is still accurate. My noble friend is right in that respect.

On the use of the word “affects”, we want to ensure that people affected, for instance, by the proverbial neighbour from hell are not prevented from getting help from their council simply because it is across electoral boundaries. I hope that that is another example of joined-up activity.

In relation to the other questions, it would be worth restating the status of the crime and disorder committee, which was in the Police and Justice Act. Section 19 creates the crime and disorder committee. In authorities where there are executive arrangements, it will be an overview and scrutiny committee; elsewhere, it is just a committee of the council. District and county councils will refer their issues to their crime and disorder committees and county councillors will refer their concerns to their committees. They are parallel systems. There will not be overlap, which is why I said when responding to the amendment that it was important that there would be proper co-ordination at local level. I hope that the noble Lord will accept that.

My Lords, will my noble friend clarify the point about affecting a local area in a bit more detail? Her example of a neighbour from hell who might be just over an electoral boundary was a good one. What about a situation in which people want to raise the fact that a football stadium at the other end of the county is having an impact on the level of policing resources available in a district some miles away? There will often be a belief—correct or not—that police resources are diverted to deal with a particular public order matter or level of crime and consequently that there are insufficient levels of resources in a particular area. I can see why people might feel strongly about that. If this is the intention, every crime and disorder committee can discuss just about anything to do with policing in a police authority area. If it is not the intention, we need some clarity from the Government on the limits of issues which legitimately affect the area and which the crime and disorder committee can legitimately discuss.

My Lords, to an extent we are trying to anticipate what the crime and disorder committees will do, and they have not yet been formed. As I understand it, in the example that my noble friend used, the issue could be raised, but it would be for the committee to decide whether it was too remote. I suggest that we are straying slightly outside the amendments and the stage that we are at. I will write to my noble friend about these matters, or perhaps we can have a conversation privately.

On Question, amendment agreed to.

Clause 122 [Overview and scrutiny committees: reports and recommendations]:

50: Clause 122, page 84, line 1, leave out “under subsection (6)” and insert “by virtue of subsection (3)(a)”

51: Clause 122, page 84, line 41, leave out “under subsection (6)” and insert “by virtue of subsection (3)(a)”

On Question, amendments agreed to.

Clause 123 [Joint overview and scrutiny committees: local improvement targets]:

52: Clause 123, page 88, line 19, leave out “under subsection (6)” and insert “by virtue of subsection (3)(a)”

On Question, amendment agreed to.

53: After Clause 125, insert the following new Clause—

“Reference of local crime and disorder matters to crime and disorder committees etc

(1) The Police and Justice Act 2006 (c. 48) is amended as follows.

(2) In section 19 (local authority scrutiny of crime and disorder matters), for subsections (3) to (8) substitute—

“(3) A local authority must—

(a) ensure that its crime and disorder committee has power (whether by virtue of section 21(2) of the Local Government Act 2000 or regulations made under section 32(3) of that Act or otherwise) to make a report or recommendations to the local authority with respect to any matter which is a local crime and disorder matter in relation to a member of the authority, and(b) make arrangements which enable any member of the authority who is not a member of the crime and disorder committee to refer any local crime and disorder matter to the committee. (4) For the purposes of subsection (3)(b), arrangements enable a person to refer a matter to a committee if they enable him to ensure that the matter is included in the agenda for, and discussed at, a meeting of the committee.

(5) Subsections (6) and (7) apply where a local crime and disorder matter is referred to a crime and disorder committee by a member of a local authority in accordance with arrangements made under subsection (3)(b).

(6) In considering whether or not to make a report or recommendations to the local authority in relation to the matter, the committee may have regard to—

(a) any powers which the member may exercise in relation to the matter by virtue of section 233 of the Local Government and Public Involvement in Health Act 2007 (exercise of functions by local councillors in England), and(b) any representations made by the member as to why it would be appropriate for the committee to exercise any power which it has by virtue of subsection (3)(a) in relation to the matter.(7) If the committee decides not to make a report or recommendations to the local authority in relation to the matter, it must notify the member of—

(a) its decision, and(b) the reasons for it.(8) Where a crime and disorder committee of a local authority makes a report or recommendations to the authority by virtue of subsection (3)(a), it must—

(a) provide a copy of the report or recommendations to any member of the authority who referred the local crime and disorder matter in question to the committee in accordance with arrangements made under subsection (3)(b), and(b) provide a copy of the report or recommendations to such of—(i) the responsible authorities, and(ii) the co-operating persons and bodies,as it thinks appropriate.(8A) Subsection (8B) applies where the crime and disorder committee of a local authority—

(a) makes a report or recommendations to the authority by virtue of subsection (3)(a), or(b) provides a copy of a report or recommendations under subsection (2) or (8)(b).(8B) Where this subsection applies—

(a) the crime and disorder committee must notify the authority, body or person to whom it makes the report or recommendations or provides the copy that paragraph (b) applies, and(b) the authority, body or person must—(i) consider the report or recommendations;(ii) respond to the committee indicating what (if any) action it proposes to take;(iii) have regard to the report or recommendations in exercising its functions.”(3) In subsection (9)(b), for “subsection (1)(b) or (6)” substitute “this section”.

(4) In subsection (11)—

(a) after the definition of “crime and disorder functions” insert—“electoral area” has the meaning given by section 203(1) of the Representation of the People Act 1983;”, and

(b) for the definition of “local crime and disorder matter” substitute—“local crime and disorder matter”, in relation to a member of a local authority, means a matter concerning—

(a) crime and disorder (including in particular forms of crime and disorder that involve anti-social behaviour or other behaviour adversely affecting the local environment), or(b) the misuse of drugs, alcohol and other substances,which affects all or part of the electoral area for which the member is elected or any person who lives or works in that area.”(5) Section 20 (guidance and regulations regarding crime and disorder matters) is amended as follows.

(6) In subsections (1) and (2), after “under” insert “or by virtue of”.

(7) In subsection (5), omit—

(a) paragraph (f); and(b) sub-paragraphs (i) to (iii) of paragraph (g).”

On Question, amendment agreed to.

54: After Clause 126, insert the following new Clause—

“Local authority scrutiny of crime and disorder matters

In section 19 of the Police and Justice Act 2006 (c. 48) (Local authority scrutiny of crime and disorder matters), after subsection 1 insert—

“(1A) Every crime and disorder committee shall include at least one member nominated by the police authority for the area of the local authority, who shall have the same entitlement to vote as any other member of that committee.””

The noble Baroness said: My Lords, I, too, apologise for coming in at this late stage of the Bill. I saw the government amendment only on Friday and I had to think about what I was going to say. I declare an interest as a former chair of a police authority and as a vice-president of the Association of Police Authorities.

This is a very complex area, as the Minister has acknowledged, so it may be helpful to give a little background. The original provisions in the Police and Justice Act about the community call for action and the overview and scrutiny mechanisms that support it were made as a result of the Crime and Disorder Act review, which the Government initiated in November 2004 as part of the White Paper Building Communities, Beating Crime, which preceded the Bill. The aim of the proposals was to improve the working of crime and disorder reduction partnerships—CDRPs—particularly to enable better joining up and greater responsiveness and to make the partnerships more accountable. Those are all entirely laudable aims, which we support entirely.

There is still significant concern about the mechanism chosen to do that, however. Since the ideas were first mooted, there has been an element of mission creep, especially in confusing the original idea of holding the whole partnership more accountable with that of holding individual partners to account. The key partners, called “responsible authorities”, in a CDRP are the local authority, the police authority, the police force, the local primary care trust and the probation board. A number of others, such as the fire authority, have some particular responsibilities and are known as “co-operating bodies”.

The functions of a CDRP are largely operational, tasking actions against particular types of crime and disorder, such as anti-social behaviour. The main exception is the work that it does in consulting communities about very local issues, which in large part accounts for the presence of police authorities on the partnerships, and which helps them to shape policing priorities and assists them in their work in engaging communities about policing issues.

Like the noble Lord, Lord Harris, I seem to remember arguing when the Police and Justice Bill was before us that if the one of the aims of the CCfA overview and scrutiny provisions was to make CDRPs more accountable, there was a good argument for putting non-executive representatives of all the five key partners on the crime and disorder committee, which is what the Act calls overview and scrutiny committees looking at crime and disorder issues. Their job would be to improve joined-up accountability for the executive arm of the partnership. This arrangement would replicate the way in which overview and scrutiny committees work in a local government context, with the committee scrutinising the work of its executive. Why should any other partner have a lesser role in holding to account the executive arm of the partnership?

It is not our battle to fight on behalf of other partners, but we pressed this strongly in a policing context, arguing that accountability would be confused and place BCU commanders in a difficult position, without a police authority member present on an OSC to square the circle when it was looking into crime and disorder issues. Any other approach would inevitably raise expectations among the public and councillors—this is an important point—that they could in some measure tell the police what to do. They simply cannot do that.

As to the presence of a police authority member on CDRPs, because such members have no operational role, it is unlikely that they would ever be asked to explain their actions to an OSC. In any event, mechanisms already exist in Section 20 of the Police Act 1996 for councillor members of police authorities to answer council questions about the discharge of police authority functions. However, we accept that there would be a potential conflict of interest if the individual sitting on a CDRP for the police authority was also to represent it on an OSC looking at the activities of that CDRP. The police authority representative on any OSC would, therefore, need to be another member of the authority, who had taken no part in the activities of that CDRP. As I said, this is a complex area.

The Government accepted these arguments when the Police and Justice Bill was going through Parliament, although they did not want to place them in primary legislation and agreed that the presence of a police authority member on OSCs looking at crime and disorder matters would be included in regulations. As the noble Lord, Lord Harris, said, the noble Lord, Lord Bassam, stated on 6 July 2006:

“We are consulting practitioners around the country on exactly how best to exercise that power, and most importantly that will include police authority members”.

He continued:

“It is also important to highlight that the composition of such committees should continue to reflect the current and future structure of community safety delivery. The power in the Bill”—

the Police and Justice Bill—

“will allow that to happen. The power is subject to the affirmative resolution process, and we can fairly argue that Parliament will have an opportunity to both monitor and scrutinise its use and effectiveness”.—[Official Report, 6/7/06; col. 391.]

I am delighted that we will still be able to do that, and I look to the Minister, who is nodding, to give me that assurance.

Since that time, the exact workings of the proposals on CDRPs and related issues in the Police and Justice Act have been under discussion. They have not been finalised, in part because of this Bill. This will impact on how it all works in practice. We have not yet had any regulations. The government amendments that we saw late on Friday will leave as an exempted matter much of the operation of overview and scrutiny in a crime and disorder context. However, they make two key changes to the Police and Justice Act. First, the Act is amended in a way that leaves out the appeal mechanism that would enable a member of a community to take an issue to the council executive if a councillor declined to deal with it. Secondly, there are what appear to be relative minor amendments to Section 20 of the Act, dealing with guidance and regulations. As this section on regulations is amended, I seek reassurance that regulations will continue to specify that a police authority member will sit on crime and disorder committees.

If the Government wanted joined-up thinking between departments—and the Minister has assured us of that and has acknowledged that this Bill is intended to do that—why did they not adopt the model set out in the Police and Justice Act and avoid all this confusion and concern? I beg to move.

My Lords, the amendment of the noble Baroness, Lady Harris of Richmond, clearly seeks clarification on the position of police authorities in respect of overview and scrutiny committees. One gauges from her speech that if the response from my noble friend the Minister were to say that regulations will make that clear, that would be more than sufficient to enable the noble Baroness to withdraw the amendment.

Perhaps my noble friend would consider what can be within the scope of the regulations, because I remain concerned that a number of such committees will have a very wide definition of which legitimate crime and disorder matters they can consider. It is clearly a matter for them to decide how broadly to define their activities, but, for example, the London Borough of Barnet has maintained throughout the past seven years that the level of resources put into policing in that borough are totally inadequate and unfair in respect of the resources that the people of Barnet pay in terms of the police precept. The London Borough of Newham repeatedly states that it should be able to run the police service in its borough. It seems to me that both of those boroughs’ overview and scrutiny committees are likely to say that they should be able to look at any matter falling within the purview of the police authority in London—covering all 32 boroughs—because it impacts on the level of policing in their areas.

I hope that my noble friend will be able say that the regulations may define what are and what are not legitimate matters for overview and scrutiny committees to look at in particular boroughs. I am grateful to my noble friend for the offer of a letter, but these are important matters. I am not as sanguine as the noble Baroness, Lady Harris of Richmond, in thinking that the arrangements under the Police and Justice Act would have worked wonderfully, because I am not convinced of that. However, given that something will be implemented, we must all try to make sure that there is clarity on what legitimate issues can be discussed by the committees and to ensure that, if those issues impact on wider questions of resources, the police authority is present and has a role.

My Lords, I am not entirely sure that I can give my noble friend much satisfaction. I feel that I have strayed slightly into a debate on a different area of policy. The basic issues are complex. Both noble Lords who have spoken are expert and are used to debating with each other on these matters. What I have to say in response may sound rather basic. Perhaps I may answer the noble Baroness’s question.

Section 20(5) of the Police and Justice Act gives the Secretary of State power to make regulations as to the co-opting of additional members to serve on the crime and disorder committee of a local authority. I was interested in the way that the noble Baroness analysed the history of this. I accept that the intention was to hold the partnership to account—she is right—and I have no doubt that the main focus of those powers was intended to be the co-opting of members of police authorities. Subsection (6) goes on to provide that those regulations,

“may provide for a person co-opted to serve as a member of a crime and disorder committee to have the same entitlement to vote as any other member”.

My noble friend Lord Bassam can rarely have been quoted so widely and with such enthusiasm, and I am sorry he is not on the Bench alongside me to enjoy it. He said that the Secretary of State continues to offer assurances that we still believe it appropriate to include the police authority in the overview and scrutiny committee functions, and the regulation-making power in Clause 18—now Section 19—allows for that flexibility. That statement, I say again, is still accurate. The problem with the noble Baroness’s amendment is that, in the light of that statement, it is inappropriate that we should suddenly decide to deal with the matter in primary legislation. We have already decided to deal with it by regulation and—to deal with the noble Baroness’s concerns—in regulations.

I take the points my noble friend raised about what regulations might contain, how judgments will be made and the impact that will have generally. I have already referred in passing to the fact that Sir Ronnie Flanagan’s review of the police service continues. One of the reasons we were not intervening in the Bill in this way is that we are waiting for that review, which is due around the end of this year. We have to consider it carefully, and we will bring to the House any of its recommendations that appear to require new legislation. A key focus will be the accountability of the police service and Sir Ronnie may well have something to say in that context about the role of police authorities, the role of crime and disorder committees and the relationship between the two. I cannot address those questions in the degree of detail I am sure my noble friend would like me to.

My Lords, I understand the dilemma my noble friend is in. Am I to interpret what she has said to mean that in a year’s time we might be debating a Home Office Bill that will recast the proposals for how crime and disorder committees might operate and how they will relate to these issues? In that case, perhaps the best approach would have been to leave well alone and not implement the relevant section of the Police and Justice Act.

My Lords, my noble friend is clearly playing devil’s advocate, which is something he can do but is not his usual style. I cannot answer that question, just as I cannot pre-empt what Sir Ronnie Flanagan is going to say. His remit is to review the police service and, in particular, to look at the accountability of the police. I am sure the noble Lord has already seen the interim report. We will have to see; I can do no better than that at the moment. By the same token, I hope the noble Baroness will understand why I am reluctant to accept her amendment at this stage of the Bill.

My Lords, I am grateful to the Minister for dealing with this issue and giving some sort of reassurance that the regulations will ensure that one representative of the police authority will sit on every local authority overview and scrutiny committee. I hope that will be written in the regulations. I understand that it cannot be in the Bill as it was not in the Police and Justice Act. There are, and will remain, significant concerns about the potential for the misuse of the community call for action, as the noble Lord, Lord Harris, has graphically illustrated, although at the end of the day it is the reputation of local government that is most at risk in that respect. I am grateful to the Minister for her reassurances and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 182 [Conduct that may be covered by code]:

My Lords, were Amendment No. 55 to be agreed, I should not be able to call Amendments No. 56 to 58 because of pre-emption.

55: Clause 182, page 129, line 9, leave out from beginning to the end of line 37 on page 130 and insert—

“(2A) The conduct of members and co-opted members in their private capacities is not covered by this Part of this Act except where it constitutes a criminal offence for which the member or co-opted member has been convicted and which is directly relevant to the performance of their official functions.”

The noble Baroness said: My Lords, Amendments Nos. 55 to 58 return us to the subject that we had much discussion about: the model code and the code of conduct for councillors. It is clearly the Government’s intention that the code of conduct should not apply where something would offend them if it was committed by a councillor in their private life, unless it was a criminal offence for which the councillor was found guilty. The trouble is that subsection (2B) does not say that; it says,

“where that conduct would constitute a criminal offence” .

We had a lot of discussion about the interpretation of that, and it has been my view all along that it will mean that even if a councillor is never found guilty of a criminal offence, “constituting” a criminal offence is sufficient to suggest that they could be still hauled before the standards board for it.

In another effort at this, we have tabled two possible alternative amendments. Amendment No. 55 would achieve the same thing as Amendments Nos. 56 to 58, but in a slightly more straightforward manner that I think would be less palatable to the Government as it would take out a whole chunk of the Bill. Amendment No. 55 would go further than the other amendments in the group as it would ensure that the same standard applied in Wales as well as England, which is not the case at the moment. Perhaps the Minister will tell us at some stage why Wales is not included in this, although it seems to be included in every other aspect of the Bill.

Amendments Nos. 56 to 58 are a shorter means of achieving the same end, which, overall, is to clarify the Bill. The Government clearly intend that the code should apply only when a criminal conviction has been recorded and limit—by statutory instrument, as we understand it—the criminal offences that the code may cover. The amendments deal with both points, bringing in the substance of the Joint Committee on Human Rights and the Dismore amendment.

The words that still worry us are the ones I have already pointed out: the categoric statement in subsection (2B) that the conduct would “constitute a criminal offence”. We would like to add, after “constitute”,

“a criminal offence for which the member or co-opted member has been convicted”.

That is derived from the 2007 model code of conduct in the Local Authorities (Model Code of Conduct) Order 2007. Paragraph 2(3) of that code applies certain provisions,

“where that conduct constitutes a criminal offence for which you have been convicted”.

That deals with the problem the Minister encountered in the debate on Report: the Bill refers to conduct that would constitute a criminal offence but the intention in the Bill, which is not stated, is that it should be a criminal offence for which they have been found guilty.

The amendments come with the Joint Committee on Human Rights seal of approval. They are common-sense amendments that are descriptive and clear, and they make sense of the Government’s stated intentions. They would clarify the Bill immeasurably. I hope the Minister will able to accept them so we can ensure that there is no problem over this aspect of the Bill, which, as we all know, has come about because of some actions that were found by the Crown Court not to constitute a breach of the code in a member’s private capacity. I beg to move.

My Lords, I am pleased that the noble Baroness has tabled these amendments. I still have difficulty, not just with the concept—there are different views about offences committed in one’s private capacity and so on—but with the words,

“where that conduct would constitute a criminal offence”.

In her explanation the Minister tried to take us around in circles. I fear we dropped off one by one, and I was one of the first. I hope she will be able to set all this right today.

I have difficulty with part of what the noble Baroness has included; namely, the conduct being,

“directly relevant to the performance of their official functions”.

There is a range of views on this and mine is probably at the tougher end. A councillor’s actions go to reputation. On the previous occasion, the Minister used paedophilia as an example that might well not be directly relevant to the performance of official functions; nevertheless, you do not want a convicted paedophile undertaking some of the functions of a local authority because, as I said, there is an issue of reputation. However, we must be much straighter and clearer than the Bill currently is about what conduct would constitute a criminal offence.

My Lords, we certainly wrestled with this very complicated idea and I did my best to explain the issue. It is complicated but I can now take the House a little further forward and give a bit more background. However, I say to the noble Baroness at the start that she and I are absolutely at one: we are all concerned that a council’s reputation should not get tarnished or pre-empted in terms of the standards regime and the courts. I shall try to give her that assurance but I have to take her through why we cannot accept the amendments as they stand—because they do not deal with the problem that we have identified.

The opposition amendments concern Clause 182 and the remit of the ethical regime to include conduct in a local authority member’s private capacity. Taken together, they aim to provide that the principles which govern the conduct of members, the model code of conduct they are required to follow and any additions to the code adopted by an authority should include conduct in members’ private capacity only where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the official functions of a member. I appreciate how hard the noble Baroness has tried to address the problem by adding the words that she has, and that is why I am sorry to disappoint her.

I certainly understand the concerns of noble Lords about the remit of the ethical regime for local authority members and why they believe it should be limited to include only certain conduct. I certainly agree with the need to limit carefully the private conduct with which the code should be allowed to concern itself in the interests of fair play for councillors.

The intention behind the amendments is obviously to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity which constitutes a criminal offence for which the member has been convicted and which is directly relevant to the member’s official role. Nothing divides us here. I agree that there should be no right—or, indeed, opportunity—to treat a councillor as guilty of an act undertaken in his or her private capacity in advance of the usual criminal process. As I indicated on Report, our intention is that the new conduct regime for local authority members should have that principle at its heart. As I will explain, the standards regime will reflect that in the same way as the 2000 Act already provided for it in respect of the official conduct of councillors.

I shall explain the issue in a little more detail. It is important to have on the record that we have not invented a new regime for private conduct. We are bound by the framework principles on which the 2000 Act, the code of conduct and the conduct regime were based. The regime was deliberately designed to ensure that councillors were as clear as possible about what was and was not covered, and clear that they could take advice on what sort of conduct might fall within the scope of the regime. Since then, the test of that has been whether conduct while performing a councillor’s role—that is, at the time the potential offence was committed—was capable of being “an offence” under the code.

As I explained, in all logic, a breach of the code can apply only to the time at which the actions take place; it cannot be made retrospective. It is fair to say that, although not everyone is in favour of the code in principle—certainly, Members of this House have spoken against it—this aspect of it has not been challenged by local government. Therefore, we have simply replicated the principles and frameworks set out in 2000 in relation to private conduct. I know that in the amendment the noble Baroness has tried to address what she sees as a problem but, given the existing framework of the regime, an amendment to the rules in the way proposed using the phrase,

“for which the member … has been convicted”—

even given the attempt to make the conviction a certainty—would not remove the problem because, logically, the code would still have to be applied at the time the conduct was committed. As I said, the code cannot, in law, be linked retrospectively to conduct. That restriction would apply even in the case of the phrase referring to conduct that,

“subsequently results in a criminal conviction”.

As I have said, it is impossible for any conduct ever to have been found to be criminal conduct at the time it was undertaken. A member who has, for example, been accused of an offence relating to child pornography cannot have been convicted of that offence at the time of committing it. This replicates the principles and frameworks on which the regime was set up in 2000.

However, perhaps I may be more positive and set aside the differences between us in terms of the means and set out how my intentions meet those of the noble Baroness. What we are providing for, and what we will make absolutely clear in guidance, is that no one should be presumed guilty until proved so.

I also want to see that the ethical regime does not operate separately from the criminal process and ensure that no sanction in respect of a criminal offence is imposed by the regime unless a criminal court has first issued a conviction. Our approach to achieving that is to provide certainty in the Bill that the regime’s remit will include conduct in a member’s private capacity which would “constitute a criminal offence”. In effect, that wording means conduct which is capable of being regarded as a criminal offence, and, as we discussed, it allows us to be very clear in secondary legislation about what conduct should be regarded as an offence for the purpose of the ethical regime.

That is one form of clarity. The second is to make it clear in regulation and guidance—here, we will replicate the guidance that already covers official conduct and we will promote it as such—that the judgment on whether a criminal offence has been committed will remain a matter for the courts. Critically, we will make it clear in guidance that, when an allegation involves a criminal prosecution, the procedure of the standards regime must be put on hold to await the outcome of the criminal processes. During that time, the standards committee will not be able to suspend the councillor and nor will the monitoring officer be able to pursue the investigation of the allegation. In the light of that, the only way that a standards committee will be able to conclude that there has been a breach of the code in respect of a member’s private conduct is if the court has convicted the member of that conduct.

Therefore, there is nothing new about the sort of provisions that we have in mind to ensure that cases are put on hold when the criminal process is under way, not least because the Standards Board has in place long-standing guidance to its investigators in cases where investigations into members’ official conduct might prejudice or conflict with police investigations or the court process. The relevant guidance states:

“An investigation should be deferred when there are ongoing criminal proceedings, a police investigation into the member’s conduct, and we cannot proceed without investigating similar alleged conduct or needing to come to conclusions of fact about events which are also the subject of some other investigation or court process”.

Therefore, we are neither creating a new offence in respect of members’ private behaviour in addition to those already on the statute book, nor creating a new mechanism for judging whether an offence has been committed. The system will rely on the existing rules of the criminal system and on the existing practice whereby the decision-making processes of the ethical regime will not be triggered unless the usual legal processes have indicated that a member has committed the criminal offence.

The ethical regime will not kick in merely where there is an allegation and neither a standards committee nor the Standards Board will be able to intervene in or make decisions on criminal allegations in advance of, or in anticipation of, the operation of the proper criminal processes. The effect will be exactly as the noble Baroness intends by way of her amendment. The approach for conduct in a member’s private capacity to fall within the code where that conduct would constitute a criminal offence is supported by the local government world, including the LGA. As I have already mentioned, I am very happy to put that on the record for everyone’s security.

In addition, the amendments seek to provide an additional limitation on the remit of the ethical regime, so that members’ conduct in their private capacity would fall only within the remit of the ethical regime where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the performance of the official functions of the member. You will not be surprised to hear me say that that is contrary to our policy intention. Indeed, that was one of the problems we had with the JCHR report.

It is very important to have on record the fact that we are very careful of the reputation of councillors. We are absolutely sure that no one should be judged guilty before a case is proved—everyone is judged to be innocent. That is a view in the processes that we have chosen, which have been accepted and supported by the local government world. I appreciate why the noble Baroness has tabled these amendments and I thank her for going to the trouble of trying to find a solution. I hope that she can accept that we have arrived at a position where we can safely agree the position.

My Lords, I thank the Minister for that very detailed reply. It is a pity that this legislation does not tie itself up with the model code of conduct 2007. It does not say the same thing and it would have been better if it had. Everyone will need to consider a criminal offence with the guidelines in one hand, otherwise they will not come to the same conclusion.

I am also a little alarmed, as the Minister said that where the Standards Board could work out that something was capable of being a criminal offence, but no charges were brought, it could take that on board. Maybe the Minister did not say that, but we need to be clear about it: where no criminal offence is pursued by the authorities, then the Standards Board cannot suddenly wake up and say, “We think we ought to have a go at that as well”. If the Minister could reassure me about that, I think we have probably chewed this as much as we can. It is really helpful when legislation lines up with other matters, so that we are always clear what we are talking about. Perhaps the Minister could put a written response in the Library so that we can be clear that that is what we are talking about.

My Lords, can the Minister confirm—we had a quick word about this outside the Chamber—that the intention is that there will be no conviction for this purpose until all opportunities for appeal have been exhausted?

My Lords, I can confirm both matters raised by the noble Baronesses. I can certainly give an absolute assurance on the question raised by the noble Baroness, Lady Hanham. The guidance will produce clarity.

My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 58 not moved.]

Clause 221 [Arrangements under section 220(1)]:

59: Clause 221, page 161, line 18, leave out “a local authority” and insert—

“(a) a local authority;(b) a National Health Service trust;(c) an NHS foundation trust;(d) a Primary Care Trust; or(e) a Strategic Health Authority.”

The noble Baroness said: My Lords, we come back to health in Part 14. Government Amendment No. 59 follows our lively debate on Report about whether it is necessary to exclude specifically NHS bodies from the role of host for a local involvement network. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, tabled an amendment along those lines. Although initially I was sceptical, they defended it admirably, so I undertook to go back and think about it. I said that I did not think it was likely; I certainly did not think it was desirable; and it was never our intention. However, the nature of LINks meant that local authorities should decide for themselves which host is best suited to serve the local area. Noble Lords were clearly not satisfied with that. I can see that it is an issue where absolute certainty is important, so I am very happy to amend the Bill in this respect.

The noble Earl and the noble Baroness have their way. I hope they are pleased that we have been able to agree that NHS bodies should be excluded, not only from being LINks but from being hosts. I sincerely hope they will support the amendment. I beg to move.

My Lords, this concession by the Government is extremely welcome. I thank the Minister for having taken our concerns away and for responding so positively. I shall return briefly to the issue I raised in Committee on the position of a private provider of services acting as a host. The Government made it clear that they were not prepared to build in an exclusion covering private providers. If it is inappropriate for a foundation trust to be a host, then in logic it seems equally inappropriate for a private provider to be a host in a local authority area if that provider provides services in that same area. I do not think that there need be anything to stop that organisation being a host somewhere else and managing any apparent conflict of interest in an appropriate way.

If the Government are not to amend the Bill in the way that I and others originally proposed—clearly there is no opportunity for them to do so—will they consider making it clear in guidance when it is appropriate for a local authority to appoint a private provider as a host and when it is not? If they were to do so, that would go a long way to resolving some of the residual concerns that I and, I suspect, the noble Baroness still have.

My Lords, I thank the Minister for this concession. It has given a considerable amount of relief to the noble Earl, Lord Howe, and me. There still seems to be the issue—certainly members of patients’ forums are still writing about it—of a host also being a voluntary organisation that is a provider of services, which means there could be a conflict of interest. I hope that the Minister will be able to reassure us about what might be in guidance to make that more difficult than it appears at the moment. I am very grateful.

My Lords, when we debated conflicts of interest at earlier stages of the Bill we talked about the practice that voluntary organisations traditionally have of managing interests. This is not a new situation to them. Dealing with conflicts of interest was one of the criteria for making a robust arrangement with a host. I take the point about private providers. We wrote to noble Lords addressing some of the issues that were raised about private providers last time round, but we can make it absolutely clear what conduct we would expect in the guidance.

On Question, amendment agreed to.

60: After Clause 221, insert the following new Clause—

“Arrangements: power to make further provision

(1) The Secretary of State must make regulations which provide that arrangements made under section 220(1) (“local authority arrangements”) must require prescribed provision to be included in local involvement network arrangements.

(2) The regulations may in particular provide that local authority arrangements must require local involvement network arrangements to include—

(a) prescribed provision relating to the way in which certain decisions of a local involvement network are to be taken;(b) prescribed provision relating to the authorisation of individuals as authorised representatives within the meaning of section 223(5);(c) prescribed provision relating to the use by a local involvement network of money derived from the arrangements;(d) prescribed provision relating to the consequences of contravention by a local involvement network of any provision of the arrangements.(3) In this section—

“a local involvement network” means a person who is to carry on activities specified in section 220(2);

“local involvement network arrangements”, in relation to local authority arrangements, means arrangements—

(a) which are made in pursuance of the local authority arrangements; and(b) under which a person is to carry on activities specified in section 220(2);“prescribed provision” means provision prescribed or of a description prescribed by the regulations.”

The noble Baroness said: My Lords, government Amendment No. 60 addresses other concerns that were expressed persuasively by noble Lords that the Bill does not go far enough to ensure the effective governance of local involvement networks. Throughout the passage of the Bill, we have had debates about what constitutes the shape and visibility of a LINk and how one would recognise a LINk when one saw one. In Committee and on Report the noble Earl, Lord Howe, was concerned about those matters and particularly about the effectiveness and accountability of a LINk if it chose not to have any governance arrangements at all, which we thought was unlikely given the activities that it was to undertake. Throughout the passage of the Bill and in getting ready for LINks guidance and elsewhere, we have made it clear that the intention has always been to make provision for governance arrangements.

We have always seen these specific arrangements as reflecting what the local networks themselves see as the best way of achieving their goals. Indeed, as you look at the early adopter projects you see different forms of relationships between hosts, LINks and networks, and the emergence of different governance arrangements. It is clearly a key feature of LINks that they are to be creatures of their own communities rather than central government. This has never meant that we would encourage anarchy to reign, but rather that we respect the different ecologies operating in local areas and that they might adopt different forms of governance to reflect the breadth of the network, the relationship with the host, programmes of work and so on.

However, despite assurances, noble Lords were still concerned. On Report, we therefore discussed an amendment tackling this issue and I undertook to consider the matter and come back to it today. The amendment put to noble Lords therefore provides the certainty that has been sought: that LINks, no matter what form they take, must have arrangements in place which guarantee transparent and vital elements of governance in some key areas. That has been achieved without forcing LINks to comply with a prescribed form of government.

The amendment places a duty on the Secretary of State to make regulations setting out the provisions that must be included in LINk arrangements relating to the governance, or means of operating, of any person carrying on LINks activities. The regulations will deal with how decisions are to be taken by a LINk—the arrangements which relate to how certain people involved in a LINk are, for example, to be authorised to enter and view premises of health and social care providers, such as how they conduct their investigations and assemble reports—the use of money by the LINk, and, importantly, what will happen if there is any contravention by a LINk of its arrangements with the local authority.

Those are the key elements one would seek to ensure certainty, a visible shape and form. I hope noble Lords will agree that the amendment secures the certainty of the key elements. It will certainly make clear to the local community, through more transparent and accountable arrangements, how—and, by implication, by whom—decisions will be taken. That could be by a board, a committee, a steering or project group; the conditions may differ, but there will be some form of arrangement to take decisions and agree priorities. It will also look at how the significant power of LINks to look into the direct provision of health and social care will be governed, for example, and how they spend their money.

I hope that noble Lords think that we have the balance right on providing for some proper shape and function while simultaneously enabling the local community to determine for itself what it wants its LINk to look like and how it wants it to work. It is an excellent compromise. I beg to move.

My Lords, once again, this is a most welcome amendment. I thank the Minister for agreeing to it, and for her comments about it. My only question is about the use of “may” in proposed new subsection (2), rather than “shall” or “must”. I hope that the Minster will not take this question as poor thanks for her troubles in any way: is it the Government’s intention to include in the regulations a provision in respect of each of the matters listed in proposed new subsection (2)(a) to (d)? I hope that the answer is yes, otherwise why include this list in the first place? It would be helpful to have that assurance on the record.

61: After Clause 225, insert the following new Clause—

“Transitional arrangements

(1) When a local authority becomes subject to the duty in section 220(1), it also becomes subject to the following duty.

(2) That duty (“the temporary duty”) is to ensure until the relevant time that there are means by which the activities specified in section 220(2) can be carried on in the local authority’s area.

(3) The Secretary of State may by regulations—

(a) define “the relevant time” for the purposes of subsection (2);(b) make provision about the ways in which the temporary duty may or may not be complied with;(c) impose on a services-provider duties as respects—(i) responding to requests for information made by a relevant person;(ii) dealing with reports or recommendations made by a relevant person;(d) make provision for the purpose of imposing on a services-provider a duty to allow individuals authorised by relevant persons to enter and view, and observe the carrying-on of activities on, premises owned or controlled by the services-provider;(e) make provision relating to the referral by a relevant person of matters relating to social care services to an overview and scrutiny committee of a local authority;(f) make provision requiring a relevant person to prepare prescribed reports and to send them to prescribed persons;(g) make provision about the publication of such reports.(4) Regulations under subsection (3)(d) may include—

(a) provision corresponding to any provision that could be included in regulations under section 223(1) by virtue of section 223(2) or (3);(b) provision corresponding to section 223(4).(5) Regulations under subsection (3)(e) may include provision corresponding to—

(a) any provision of section 224(2) to (5);(b) any provision that could be included in regulations under section 224(6).(6) References in subsection (3) to a “relevant person” are to be read as follows—

(a) for the purposes of subsection (3)(c) and (e), a request, report, recommendation or referral is made by a “relevant person” if it is made by a person in carrying on section 220 activities in pursuance of temporary arrangements;(b) for the purposes of subsection (3)(d), an individual is authorised by a “relevant person” if the individual is authorised for the purposes of regulations under subsection (3)(d), in accordance with any applicable provision of those regulations, by a person carrying on section 220 activities in pursuance of temporary arrangements;(c) in subsection (3)(f) “relevant person” means—(i) a person who is or has been carrying on section 220 activities in pursuance of temporary arrangements; or(ii) a local authority which is or has been subject to the temporary duty.(7) In this section—

“overview and scrutiny committee” has the same meaning as in section 224;

“section 220 activities” means activities specified in section 220(2);

“services-provider” means (subject to subsection (8))—

(a) a National Health Service trust;(b) an NHS foundation trust;(c) a Primary Care Trust; or(d) a local authority;“social care services” has the same meaning as in section 224;

“temporary arrangements” means the arrangements made by a local authority to comply with the temporary duty.

(8) In subsection (3)(d) “services-provider” also includes a person prescribed by regulations made by the Secretary of State under section 223(7)(e).”

The noble Baroness said: My Lords, with this amendment, we come to an important part of our debates over the past weeks—indeed, it seems like months. I hope that noble Lords will feel that they have played a critical role in getting us to where we are now on the transitional arrangements.

Government Amendments Nos. 61 to 63 arise from these constructive discussions over the past few months, particularly on Report, about the need to address the possibility that there might be a gap in patient and public involvement activity should there be any delay between the abolition of patients’ forums and the establishment of LINks. The genuinely creative amendment brought forward on Report addressed some difficult issues that would have occurred had we postponed the introduction of LINks, when authorities doing really well and getting ahead of the game would have been held up. On the other hand, we would have found ourselves unable to make money available, that money being an enabler and facilitator for what needed to happen. I undertook to consider the amendment further and to come back today with an amendment to take account of noble Lords’ concerns and ideas.

Before addressing the substance of the amendment, I shall say a few contextual words. This issue clearly exercised patients’ forums as well and we wanted to provide confidence to those dedicated and active members of patients’ forums who we now sincerely hope will take their enthusiasm and expertise on to the next stage in LINks. I shall address a few concerns that have surfaced in letters to me. That is important, because this is my final opportunity to put the record straight on some of the concerns around transition.

First, on LINks not having a fixed membership, there are two issues to clarify, especially as patients’ forums have been exercised about this. The Bill does not specify who should be in a LINk, what kind of person should be involved or particular roles, because we wanted it to be locally owned. It is a radical experiment in some senses, because we are asking local networks to reach out into the furthest corners of their community and capture and amplify voices that are more often than not unheard. Flexibility is a virtue in that case, not an impediment.

My second point picks up on the amendment on governance that we have just discussed. Whatever form LINks take, they should have clear-cut arrangements for matters such as decision-making, who is an authorised representative, how funds are spent and so on. So although we do not specify details of membership, the local LINks themselves will have to have clear arrangements for determining who is an authorised representative for the purpose of reporting or taking part in visits. The balance is right in that regard.

Another major fear—a misconception that has persisted throughout this—is that LINks do not have any powers. In fact, the arrangements by which LINks can require information and responses to their reports, the means by which they can gain access to premises—the sort of thing you find in Clause 222—and the duties placed on commissioners and providers to respond to LINks are all provided for, just as they have been provided for patients’ forums. They effectively have powers in the shape of duties placed on others.

However, there are three important reasons why LINks can achieve even more than patients’ forums. First, in the forum legislation, the Secretary of State has the power to make regulations only in respect of forums and their ability to enter premises. Under Clause 223, the Secretary of State has a duty to make those regulations. Secondly, commissioners and providers would be required to respond to LINks—under Clause 222—and allow entry to both health and social care settings, not just health as in the case of forums in Clause 223. Thirdly, under the forum arrangements, overview and scrutiny committees do not have to respond to referrals made by forums, which they will now be required to do when receiving a referral from LINks—that is in Clause 224. These are important powers. Noble Lords may also know that the regulations that provide for the means by which organisations are obliged to respond to LINks are currently being consulted on by the Department of Health. If there are any ideas as to how the regulations could be clarified or strengthened, we would certainly like to hear them. There were questions as to whether the Bill reduces the ability to have influence over healthcare. This I cannot understand. Our view is that LINks may have far greater clout than the forums, because they have a much wider remit and capacity.

Another concern is that LINks will be poorly funded. That again is not the case. As I understand it, the details of the three-year settlement are to be announced very shortly now that the Comprehensive Spending Review is settled. Making funds available directly to local authorities, which will then procure the hosts of LINks, missing out additional bureaucracy at the centre, means that more money will be available than many people expect.

We addressed conflicts of interest in the previous amendment. It is an important point, but it is dealt with all the time in many aspects of public life. Many organisations wear two hats.

There is a notion that LINks will be excluded from monitoring some health and social care services and all independent sector services. That is not the case. While there are some important restrictions on where a LINk can visit—for example, children’s social care facilities and people’s homes—there is no limit to the health and social care services that a LINk can monitor.

I hope that those answers to contextual questions add up to being able to say to patients’ forums and to people who are working in the field to establish LINks that we have done our best to ensure that what they need to make LINks a success and keep the commitment, energy and expertise available is in place. We have enabled that.

That is why this amendment on transition, which inserts a new clause, is so important and why I am so grateful to noble Lords. It may look a bit complicated, but its purpose is straightforward. The effect is that from 1 April, if a local authority has not established contractual arrangements through which LINk activities can be carried on, it will be under a duty to make sure that the activities are carried out by other means. The amendment sets out certain aspects which the Secretary of State will include in regulations, such as the period for which these transitional arrangements apply and the activities and the reporting of activities which are to be undertaken in this period.

I want to clarify one or two points on this. The question might arise of how we will know if the formal LINk arrangements have been reached and thus when the transitional period ends. We think that three clear stages will have to have been reached: first, when a host has been procured; secondly—here our amendment on governance is particularly relevant—when the LINk governance arrangements are in place; and, thirdly, when the LINk has begun to meet to start carrying on its activities. We shall make arrangements with local authorities to assess at which point each stage has been reached in each local authority area. We were tempted to put the period for the transitional duty in the Bill, but after careful thought we felt that regulations were more appropriate, as they would allow us to extend the period in the unlikely eventuality that that is needed. However, we do not believe that it will be necessary.

One of the main benefits of the transitional LINk arrangements is that local authorities will be able to receive their full allocation of funds from the outset. One of our concerns was that if we had retained the old system in parallel it would have eaten into the funds that we want to give local authorities to get LINks into action and which will be the engine that will drive these changes faster.

I shall say a little more about how we envisage the arrangements being carried on during the transitional phase. We will make further provision in regulations, which we will discuss with other stakeholders, about the ways in which the temporary duty may or may not be complied with—for example, because a local authority could not undertake the activities. We will expand in guidance on possible arrangements. We are clear about allowing people currently involved in patients’ forums to have an opportunity to apply their experiences and local knowledge. We shall make it clear to local authorities that in making their transitional arrangements they should invite members of the local population who have experience of monitoring local health and social services and representing local people’s views to be involved with the transition from patients’ forums to LINks activities. Local authorities will need to ensure not only that those people are available to undertake the LINk activities, but also that the group has the staff support and funding necessary to be effective. Of course, funding covers expenses only.

The regulations will also provide that all the same principles apply in the transitional phase as in the formal phase. For example, during the transitional arrangements, the temporary LINk will be able to make referrals to the overview and scrutiny committee and service providers will have the same duties to whoever is carrying out LINks activities. We are building genuine progression and consistency. That means that LINks, even prior to the formal arrangements, will be able to require information and responses to their reports and, perhaps most importantly, there will be certain obligations on providers of health and social care to allow people involved in the arrangements to have access to their premises.

In that context, I shall digress ever so slightly to thank the noble Baroness, Lady Neuberger, for the constructive part that she played in considering the relationship between LINks and the regulators. She very helpfully proposed that the regulators should involve authorised members of LINks in every inspection that they carry out. I set out in my letter to all Peers on 3 October 2007 and in debate that regulators are extremely supportive of the notion of involving lay people in their inspection activity; indeed, they already do so in a number of visits. However, lay assessors are not involved in every visit, nor would the regulatory bodies support the default involvement of LINks, as there always remains the possibility that it might not be appropriate. The costs of involving LINks in every case might also be disproportionate. The regulators, which have huge experience, have stood firm on those points.

We believe that the current position achieves the right balance between enabling adequate and appropriate involvement and allowing the regulators to go about their business in an efficient way. As the noble Baroness knows better than most, both the regulators are very supportive of LINks and are keen for the new health and social care regulator to continue to involve patients and the public as appropriate. I am sure that in the vast majority of cases informed, experienced and appropriately trained people participating in LINks can only enhance the process of assessment by the regulators. Our guidance will make it clear that our general expectation is that the regulators will join up with LINks to seek the involvement of lay assessors.

I hope that by clarifying our position on this and emphasising the transitional role for people who are already active we have strengthened the core of the LINks proposals. We are setting out a robust framework, which will mean that, even if a local authority has difficulty or delay in establishing formal LINks arrangements, the activities will still go ahead. This is crucial, because it is about maintaining pace, experience and enthusiasm. It is not just people in this House or in Parliament who think that the transition arrangements are a good idea; we have discussed them with the LGA, which is supportive. I also understand from the Commission for Patient and Public Involvement in Health that local authorities have suggested something along these lines as they prepare for LINks, so we are clearly all moving in the same direction.

It only remains for me to point out that the final two amendments are simply consequential to the insertion of the new clause on transitional arrangements and governance arrangements to make sure that Clause 226, which deals with the interpretation of this part of the Bill and supplementary matters, refers to the correct section numbers.

I am particularly pleased that we have been able to develop this notion. This is the last time that I shall speak on a health amendment, so I shall say how very grateful I am to the noble Earl, Lord Howe, the noble Baroness, Lady Neuberger, and other noble Lords who have spoken on the health part of the Bill, which was bound to be controversial, because it comes with some history. This House is particularly expert on it. The position that we have arrived at is an improvement and will make a big difference to the success of the new scheme. I am grateful for the help that we have received. I beg to move.

My Lords, I thank the Government and, in particular, the Minister for this welcome amendment, which looks set to resolve one of the most serious concerns that I and others had on this part of the Bill. I also thank her for her kind remarks, which, I am sure she will know, are reciprocated from this side of the House. There are several features of the amendment that I particularly welcome, not least the fact that we are promised regulations, not merely guidance, and that the length of the transitional period is left flexible, at least for the time being.

I have a number of questions. We all want to ensure that the transitional arrangements, whatever they are in individual cases around the country, are substantive and meaningful. Can the Minister give us a clearer idea of what mechanisms will be in place to ensure that local authorities do not engage merely in token forms of activity? We need to prevent that. For example, local authorities should need to be able to prove that during the transitional period patient and public involvement, including specific visits and monitoring of services, has taken place at no less a level of intensity than would be expected and to demonstrate this to the Department of Health. As an aspect of that, it might be appropriate for local authorities to publish the relevant details of PPI activities on their websites.

What more will local authorities be asked to do in order to demonstrate that they are not simply going through the motions? In support of that, how will the department encourage forum members to collaborate with local authorities during the transition? How will they ensure that they are properly supported and funded, and how will the work in progress of forums be taken forward under the provisions of Clause 227(3)?

Secondly, when are the draft regulations likely to be published? Doubtless the fact of these transitional arrangements will become known about quite soon among the generality of patients’ forum members, but until each forum knows precisely what the local authority in its area is intending to do as regards implementing the regulations, there may be a sense of unreality in the air, given that the only thing that forums know for sure is that they will cease to exist on 31 March. Early publication of the regulations is essential if we are not to see forums and their members dispersing in a manner that will make these arrangements harder for local authorities to implement.

Thirdly, given that there will almost certainly be insufficient time to consult on the regulations, could the Minister explain why the word “shall” or “must” does not appear in subsection (3) of the amendment instead of “may”? I am sure that there is a good answer to that, but is there any significance to it?

Lastly, I return briefly to the issue of private providers. How will the Government ensure that private providers of health or care services are obliged to respond to requests for information and visits from those charged by the local authority with implementing the transitional arrangements? If the duty of a private provider to respond to such requests is enshrined in the service contract, it may in many instances be specific to patients’ forums rather than to individuals carrying on activities in the transitional period. How will the Government make sure that private providers are under an equal duty to respond even after forums are abolished? In the Minister’s letter to me, for which I thank her, she indicated that in relation to the activities of LINks the matter would be subject to directions given to PCTs. Will the same apply to the transitional arrangements? If so, who will monitor the extent to which PCTs and independent contractors abide by the content of such directions?

My Lords, I agree absolutely with everything that the noble Earl has said. As noble Lords can hear, I am losing my voice, so I will not say much. I thank the Minister for the letter that she wrote to the noble Earl and me, in which she made it very clear that accompanying the regulators on visits would be an expectation. It is very important that that will be in the guidance and I am truly delighted by that.

On the point raised by the noble Earl about independent and private providers, there is a further complication, which was drawn to my attention only today. Increasingly, there will be some private provision of support functions to the PCTs. Some of that may include part of public and patient involvement. I wonder how, and not only in the transitional arrangements, the Government think that in the guidance and the regulations it can be made very clear—whoever is involved, be they private, voluntary or public sector, whether they are involved in providing support to patient and public involvement or whether they are the organisations that need to allow access—that somehow everybody will be treated equally. That is what we are really getting at; we want to know that this will be a level playing field.

My Lords, I will take those questions in order; I will have a better chance of answering the last one if I start with the first one. I say to the noble Baroness that this Bill has proved deeply unhealthy. At some point everybody on the Front Bench has lost their voice. We will be well out of it at the end of this.

The noble Lord makes important points on the transitional arrangements. He has identified some of the ways in which this could be done, in relation to the website, the monitoring of services and so on. We have tried in this area, as well as in others, to achieve the right balance in giving people power, in enabling them, in giving them money and now in giving them scope, by way of transition, to go and do things that they think are right and proper and will make a difference. They can draw on their experience.

The amendment that we debated earlier about the governance mechanism will substantiate the sort of changes that we want to see. That will make it absolutely clear that this is not tokenism but that these are real changes. The activities are being undertaken, including investigating and monitoring reports, which can be logged up—and certainly one would be looking at the relative levels of activity in inspections, visits and so on. In those arrangements for governance, we identified decision-making arrangements, using money wisely and making sure that a membership is in place, for example. They are tough and will be explicit. The department will keep a very close eye on this over the next few months.

On the timescale of the regulations, the noble Earl rightly said that we do not have time to consult, given where we are. That is why I stressed that we would be working with stakeholders to make sure that we have the common-sense approach that we need. We will bring forward the regulations as soon as we can. We will be looking to have them in place in the New Year. I take the point that time is very important.

On the question of “may” and “shall”, we intend to introduce regulations on all the matters to which the noble Earl referred. I will write to him on that point because there may be other points of detail that would be useful to pick up. I will certainly have to write on some of the questions raised about private providers. I am advised that directions will apply during the transitional period in relation to the independent sector. The Department of Health will make sure that there is compliance with those arrangements. Those are important questions and I am not really equipped to give more of an answer, but I can certainly make sure that we write.

On Question, amendment agreed to.

Clause 226 [Sections 220 to 225: interpretation and supplementary]:

62: Clause 226, page 166, line 15, leave out “225” and insert “(Transitional arrangements)”

63: Clause 226, page 166, line 24, leave out “225” and insert “(Transitional arrangements)”

On Question, amendments agreed to.

Clause 230 [Duty to involve users of health services]:

64: Clause 230, page 169, leave out lines 23 to 27 and insert—

“(a) guidance given by the Secretary of State as to when, or how often, involvement under arrangements under subsection (1B) is to be carried out;(b) guidance given by the Secretary of State as to the form to be taken by such involvement in any case specified by the guidance.”

The noble Baroness said: My Lords, Amendments Nos. 64 and 65 follow on from our debate on Report when concerns were expressed that, with our amendments to Section 242 of the 2006 Act, we might be paving the way for too narrow a concept of involvement. I undertook to look one last time at the form of words being used, and my noble friend has now tabled these amendments to take account of those concerns. Although they are a relatively minor change in language, the amendments offer more clarity that involvement can take various forms in different circumstances. I should like to put on the record that there was never any attempt by us to provide for a narrow definition of involvement or prescribe a particular, unique form of involvement. The two amendments are necessary to reassure noble Lords of our intentions and to avoid any doubt on the matter. I hope that noble Lords will recognise the spirit of this clarification and feel able to support the amendments. I beg to move.

My Lords, I welcome these amendments and thank the Minister most warmly for having agreed to them, and of course I accept fully the assurances that she has given. I wonder whether she will allow me to ask a couple of questions on the content of the clause as a whole.

First, in new Section 242A, we debated on Report the phrase “prescribed matters” and the uncertainty about what that phrase might cover. I would appreciate an assurance that no less than is currently provided for in the Health and Social Care Act 2001 is to be covered by the prescribed matters. I sought at the last stage to alleviate this potential difficulty by asking for consultation on the regulations, but the Government did not agree to that, so it would be extremely helpful to have an undertaking that at least the basic 2001 Act involvement provision—that is, the planning of services, planning changes in services and decisions about the operation of services—will be applied to the prescription of the matters to which the duty is to apply and that the regulations will be used only on the first and any subsequent occasions to expand on this core principle rather than reduce those principles.

Secondly, in new Section 242B we are being asked to accept some extremely sweeping provisions that permit strategic health authorities, which are effectively branch offices of the department, to override local involvement work by PCTs, even where that work has already begun. That introduces a risk that a strategic health authority could undertake involvement work across one of the very large areas they cover without the sensitivity that only local involvement work by PCTs can bring, and which can then be precluded under this clause. For example, a reduction in the number of GP practices may make economic sense across a whole area, but the precise configuration can be determined only through the involvement of patients, so that transport and access difficulties that apply locally can be factored in. If that is left to consultation under Section 7 of the Health and Social Care Act, and if it is a substantial variation, it may well be too late to consider creative options for co-location that the public might generate when they are given the opportunity to do so. When I probed the purpose of these provisions on Report, the Minister indicated that they had been included to avoid duplication. However, the powers, if read literally, are drafted in a much wider way. Therefore I wonder whether I could have the Minister’s confirmation that the provisions are intended only to avoid duplication of involvement with the same people on the same issues and will be used only for this purpose.

Thirdly, I would appreciate her confirmation that the provisions and any regulations will not be used to prevent, inhibit or override local involvement by PCTs with patients or their representatives locally; and finally, that the exercise of any powers by strategic health authorities in respect of whatever range of directions in new Section 242B is to be put in place will be decided by strategic health authority boards in public session and reported in the same way. There needs to be transparency here.

All this gives rise to the question: how will compliance by strategic health authorities with these provisions be monitored and reported on, and who will performance-manage strategic health authorities on their involvement duties? PCTs are monitored by the Healthcare Commission on their patient and public involvement, but can the Minister confirm that the commission also has a remit under the Health and Social Care (Community Health and Standards) Act 2003 to monitor strategic health authorities, and that this monitoring function of the commission will apply to the new provisions in this clause?