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National Assembly for Wales (Legislative Competence) (Local Government) Order 2010

Volume 718: debated on Tuesday 30 March 2010

Motion to Approve

Moved By

That the draft order laid before the House on 10 February be approved.

Relevant Document: 9th Report from the Joint Committee on Statutory Instruments.

My Lords, the draft LCO inserts 10 new matters into field 12, the local government field, of Schedule 5 to the Government of Wales Act 2006. It was approved by the National Assembly for Wales on 9 February and by the other place on 23 March. The legislative competence order was announced by the then First Minister, the right honourable Rhodri Morgan, as part of the Welsh Assembly Government’s legislative programme for 2009-10 on 14 July 2009. It will confer competence on the National Assembly to legislate in relation to the recruitment, retention and remuneration of all local government councillors and with regard to the structure and role of community councils.

This legislative competence will enable Welsh Ministers to achieve three outcomes. First, the Assembly will be able to legislate to ensure that local government provides relevant information to the public about what it does, thereby making councils more accountable and promoting public engagement. Future measures could introduce requirements on councils and councillors to provide information to local people on council activities and the work that councillors carry out.

Secondly, this legislative competence order will give the Assembly the power to introduce measures to remove the barriers and disincentives to people standing for election to local authorities and improve the skills and capacity of councillors once elected. For example, legislation could require local authorities to ensure appropriate training and development for their elected members. Welsh Ministers also believe that reform of councillors’ allowances could similarly help to recruit and retain a wider range of people as councillors.

Finally, the order will give the Assembly the power to legislate to develop and strengthen the role of community councils so that they are able to deliver a wider range of services and actions locally. This request for competence is in response to a desire by Welsh Ministers to address issues arising from three reviews of aspects of local government in Wales. The Aberystwyth University report in 2003 comprehensively reviewed the activities of community councils across Wales. It identified the constraints that community councils believe they face and set out a number of proposals for enhancing their roles. The Assembly Government have given a commitment to seek legislation to address issues identified in the review.

Secondly, the Assembly Government established an expert panel to look at any issues that affected the recruitment, retention and development of councillors in Wales. The report of the panel, entitled Are We Being Served?, was published for consultation by the Assembly in August 2009. The consultation’s responses are informing proposals for a future Assembly measure.

Finally, the Independent Remuneration Panel for Wales is considering the remuneration structures for councillors in Wales. A report by the panel setting out proposals for fundamental reform of the remuneration arrangements for councillors in Wales is expected next month. However, the panel has already called for the National Assembly to gain legislative competence over remuneration. As is always the case, the LCO has been subject to detailed and thorough scrutiny by the Constitution Committee of this House, the Welsh Affairs Committee in the other place, and a committee of the Assembly. The Government are of course grateful to these committees for their helpful and constructive recommendations. The Constitution Committee concluded that this LCO does not raise any issues of constitutional principle. The Welsh Affairs Committee expressed concern about the use of the term “communities” in the LCO. While the committee is correct—that the word is used in a range of different contexts—in this LCO the term “communities” is limited in its application to community institutions described in the Local Government Act 1972. These deal with local government at its most local level and extend only to community and town councils and community meetings. This link back to the 1972 Act is important in ensuring consistence in the use of terminology. The Explanatory Memorandum has been amended at paragraph 8.11 to clarify this issue.

The Welsh Affairs Committee also suggested the LCO should be renamed to give readers a clearer idea of its nature and focus. After very careful consideration it has been concluded that the current convention should continue so that the title of an LCO reflects the names of the most significant fields in Schedule 5 to which the matters relate. For this LCO, local government is therefore the most appropriate title. The Secretary of State for Wales has, however, written to the committee to say that in the new Parliament he would be happy to consider that the more descriptive titles be included in material published with an LCO, such as the Explanatory Memorandum.

I hope the House agrees that it is entirely appropriate for legislative competence in this already devolved policy area to be transferred to the National Assembly. This would provide the Assembly with comprehensive competence over local government in Wales and would enable Welsh Ministers to bring forward legislation to deliver the reforms they wish to see introduced. I commend the order to the House.

My Lords, I thank the Minister for laying this order before us so clearly. The primary purpose of this LCO is to confer competence upon the Welsh Assembly to make primary legislation in relation to community councils in Wales. According to the Explanatory Memorandum, the Assembly Government wish to enhance and strengthen the role of community councils and enable them to deliver a wider range of services and actions locally. To that extent, we welcome the order.

We believe strongly that power should be devolved to the closest possible level to the citizen. In many cases, it is the community council that is closest to and most responsive to the needs of the citizen and if the Assembly Government propose to develop the role of the community councils in this regard, we applaud it. Other matters covered by the proposed order are the remuneration of county and county borough councillors and the recruitment of candidates to serve on county, county borough and community councils.

There are two questions I would wish to put to the Minister. The first relates to matter 12, which would provide the Assembly with competence to make provision relating to grants by Welsh Ministers to community councils. At the moment, the bulk of community council income is provided by way of council tax precept. It would be a concern if community councils were to have to rely exclusively or even primarily upon grants from the Assembly Government and the principle of the council tax precept were to be undermined or displaced. What assurances can the Minister give in that regard?

My second question relates to matter 12.13, which would allow the Assembly to put in place measures to help raise standards of local government by community councils. As the Explanatory Memorandum points out, in England this is presently achieved by the quality parish and town council scheme, which is established on a voluntary basis. Why have the Welsh Ministers decided not to pursue the voluntary route but rather to opt for legislation? Further than that, I have no other observations.

My Lords, we welcome these measures for the local councils and, particularly, the community councils in Wales. As the Minister has quite correctly stated, the order is conceived through three reports. The Aberystwith University College of Wales, as it was then, produced a report which identified the constraints that community councils believed they faced. The report concluded that existing procedures for establishing a community council were too restrictive, as the Minister has mentioned, and that those for dissolving community councils were too lax. These procedures have been tightened up as a result of the recommendations of the report and the scrutiny of the Welsh Affairs Committee and the Assembly. The issue of directly funding councils was also taken into account. The second report, Representing the Future—which was produced by the Councillors Commission established by the Assembly—dealt with the future of community councils; and the third report was produced by the Independent Remuneration Panel and addressed the remuneration of councillors. A number of matters arise from this legislation which I wish to address.

The voting procedures are addressed in paragraph 7.10 of the Explanatory Memorandum. In our view, this is a lost opportunity in voting terms. We could have introduced a proportional system of voting but the Government and the Assembly appear not to have gone along that route. That is to be regretted. Issues connected with population sparsity are not properly addressed within Wales and the Official Opposition during their tenure reduced the calculations of population sparsity regarding need and we are now in a far worse state financially than perhaps we would have been.

One of the problems with this legislation is that the aspirations are great but the economic rewards for trying to achieve the end results that we all desire will not be met. For example, the aspirations on grants will certainly be difficult to achieve in the current economic climate. On the other hand, collaboration between community councils is extremely important, as is the transparency and participation within them.

There is mention of the national park authorities—of which there are three in Wales—and we cannot understand why all members are not elected from within the areas of the national parks; the majority are appointed by the Assembly. In the case of councils, many councillor representatives on the national park authorities do not live within the areas of those bodies. In fact, I can name people who live 80 miles away from national parks but are still representatives.

The question of scrutiny was addressed by both the Minister and the noble Lord, Lord Glentoran. It is interesting that, in the Explanatory Memorandum, paragraph 8.5 refers to the fact that exercising competence might have unintended consequences in,

“raising unrealistic expectations of what smaller community and town councils could undertake and deliver”.

Expectations in many communities in Wales are great and can be achieved. For example, in 1987, three people came to me and suggested that it would be a good idea to have a book festival in Wales and to bring the authors there and so on. They asked me what I thought of that, and I said that we should do it immediately—and the Florence family did it. We know today that that is not entirely funded by grants from the Welsh Assembly, but add-on match funding has produced a very successful festival. I was involved in that from the beginning, as I was in the Brecon Jazz Festival, which has been equally successful. So communities should be given their head, and they can do it when they are given the opportunity.

There are other factors that we believe are important. This is a small leap for the National Assembly and, as we will discuss in the next LCO, there is a very long way to go. The matters that we are discussing are small but very important to Wales. We welcome this LCO.

My Lords, I wish to speak briefly on this order. It is obvious that much of the order was conceived in more prosperous times before the recession and the era of staggering financial deficit and severe restriction on public expenditure that now engulfs us. Indeed the Aberystwyth report to which the noble Lord, Lord Livsey, referred, which set out proposals to enhance the role of community councils in Wales, dates back to 2003. The National Assembly’s positive response and commitment to strengthen these councils to deliver a wider range of services dates back to 2004.

I recall quite vividly the discussions that we had on establishing community councils in Wales during the passage of the 1972 Act. At that time, the country suffered from a superfluity of small, often ineffective local authorities. The thrust of the reform was to reduce their number and to create bigger, more efficient units at county, district and borough level. The concept of community councils, unique to Wales but corresponding to parish councils in England, was developed to ensure that communities had a voice on local issues that would be heard by the higher authorities. The councils were deliberately not given many powers and were financed by precept levied at district level. The outcome is that we have some 730 community and town councils, half of them with a population of fewer than 1,000, eight with more than 20,000 and Barry, the largest, with 45,000. There are 8,000 councillors in all. The pattern is very variegated.

What this order proposes and will lead to potentially is an extra tier of executive local government. While this may have been demand-appropriate to the more prosperous times gone by, it is and will be an increasingly questionable proposal in the years immediately ahead, bearing in mind the costs that are implicit in various provisions of the order related to remuneration of councillors, direct funding by the Assembly Government and so on. It is worth reminding ourselves that Wales moved to a unitary local authority system in the early 1990s and now has 22 authorities that combine the powers of county and district councils. If they have a subsidiary tier to perform some of their functions at a local level, it is likely that this will be permissive rather than obligatory in nature, if only because of the great variety of community councils in size and innate strength. The powers to promote or improve the economic, social or environmental well-being of their area present a novel opportunity for community councils and may well be much in demand. Again, the issue of the availability of resources is bound to arise and there may well be a case for direct funding by the Assembly Government of local projects that fall into this category.

While there is a prima facie case for saying that this order promotes local democracy—it enables the Assembly Government to empower community councils—and is therefore to be welcomed, as my noble friend Lord Glentoran said, there is another side to that coin: this order gives additional powers to the Assembly to be more closely involved and to intervene at the very local level at which community councils operate. Everything depends on how these powers are exercised. “Power to the people” sounds good and is right, but “power over the people” is not so—a single word makes all the difference. We can only hope for the best.

My Lords, I join in what appears to be a unanimous verdict of approval for this order. If ever there was a field where the presumption is that devolution should occur unless there is a very good reason to the contrary, it is local government. I find myself in agreement with practically everything that the noble Lord, Lord Livsey, has said in this matter. He has said it in some considerable detail and it would not be improved by repetition on my part. As one who was president of Aberystwyth for 10 years and chairman of its council for that period, I revel in the fact that the 2003 initiative has been approached with such approval and finds fruition today.

I am not entirely sure what the argument of the noble Lord, Lord Roberts of Conwy, was about community councils. I do not assume that he is saying that there should be no such councils and that the whole tier should be abolished. That would be a retrograde step and would go entirely contrary to the direction that the noble Lord, Lord Glentoran, indicated.

I assure the noble Lord that it was a Conservative Government who established community councils in Wales in the Local Government Act 1972.

I take that point, although one could be a little churlish and say that the councils were there before, as parish councils. They were amalgamated—sensibly, if I may say so—in the legislation that the noble Lord refers to.

There are difficulties. One could wax eloquent for hours on this matter and indeed fringe on the metaphysical on the question of exactly where one draws the line between local influence and local taxation. Noble Lords will remember that the American colonies’ cry was, “No taxation without representation”. I suppose that we can say now that the issue is, “No representation without taxation”. There is indeed a case for some independence in the raising of money. On the other hand, there is also a case for subvention from central funds. With regard to the future of community councils, one should try to maintain the blend between a fairly light local subvention and a slightly greater subvention from local funds. I do not cavil at the name “community council”. It is a term of art and it is entirely proper that it should be used in this context.

My Lords, I am grateful to the noble Lords who have spoken in what I detect are supportive voices for the order, although I think that the noble Lord, Lord Roberts, followed a slightly more pessimistic vein than I would have hoped for on such a constructive order. However, I think that his view has been counterbalanced by rather more optimistic perspectives with regard to the community councils from the noble Lords, Lord Livsey and Lord Elystan-Morgan.

I will deal with the issues that I think noble Lords are particularly concerned about. First, the noble Lord, Lord Glentoran, was concerned about whether the establishment of a granting power for potential extra resources to individual community councils would replace the current funding arrangements. That is not the intention. The Welsh Ministers have no intention of replacing the present structure of the community councils, which will continue to receive their income via a precept. What is sought is a power to enable Welsh Ministers to provide funds for additional functions that may be bestowed on community councils. That would depend on community councils seeking initiatives that require additional funding. It would be for the Assembly to make that judgment, but surely it is right that we are transferring power so that the Welsh Assembly makes that judgment rather than anyone else so that it meets the democratic requirements in those terms.

I suppose that the noble Lord, Lord Roberts, would say that he has introduced an element of realism into the debate rather than pessimism, but I think that he is overly gloomy, certainly with regard to the issue that the noble Lord, Lord Livsey, raised about council opportunities and festivals. Community councils do not take initiatives in those areas dependent solely on how well off they are. If that were the case, we would have our festivals in very different locations from where many of them are. It very much relates to the inspiration, commitment, energy and activity of the local people who get festivals off the ground, as the noble Lord mentioned with regard to the Brecon Jazz Festival, although there are many other events across the whole of the United Kingdom that noble Lords could easily draw on. They are a reflection not of comparative resources in the locality, but of particular initiatives of people who are prepared to get things done. We all salute those communities, which achieve these things very well.

The order is entirely consistent in these terms. It is a step forward in democracy: first, by transferring the overall powers to the Welsh Assembly rather than letting them rest with the Secretary of State answerable to this Parliament; and, secondly, by attempting to enhance the powers of communities. I am grateful to the noble Lord, Lord Roberts, for identifying with great accuracy the enormous divergence of community councils in Wales. It is true that there is a great difference, but we are seeking to make provision possible. How far powers are exercised and the extent to which local community councils respond will depend on all the initiatives that I have indicated.

As the noble Lord rightly identified, some community councils are very significant indeed. We appreciate that Barry council is a pretty significant institution in its own right. Why is it so large and yet still a community council? Of course, it depends on the conurbation that one relates to. In the case of Barry and in other parts of Wales, by definition the authority to which the community councils relate are far distant and are not numerous in population, let alone at the level of the community councils. However, we are seeking an enhancement of the community councils.

The noble Lord, Lord Livsey, was optimistic about these proposals and supportive of them, for which I am grateful to him. I do not think that the issue of voting transparency crops up very much, nor does the issue of the methods by which councils are elected. I do not think that the Assembly thinks it necessary to have powers in this area to fulfil its obligation of enhancing the powers of community councils. It has not sought that particular power or competence. The noble Lord is of course fully entitled to his viewpoint, but it is not shared by the Assembly.

The noble Lord, Lord Glentoran, asked why the Welsh Assembly Government were not proceeding with a more voluntary approach, rather than this element of legislative competence. Rhodri Morgan made it clear, when he was concerned with the development of this competence, that he was very much in favour of it going forward on a voluntary basis. In a sense, this legislative translation is a back-up; it is a reserve power, where achievement may be at a lower level than one would otherwise want to see. There is the expectation, as in all relationships with community councils, that a great deal of initiative has to come from the councils. It is collaborative with the Welsh Assembly Government, in a way that is similar for community councils throughout the United Kingdom. We all recognise how important that aspect of local initiative is.

The noble Lord, Lord Roberts, was worried about whether we have inserted an additional tier of local government and I could see the demons that were beginning to lurk—extra bureaucracy and extra cost in difficult times. He warned us against the problems that we might create. I emphasise that this is not about an additional tier; it is about enhancing the competences of community councils where they wish to take initiatives. It is not about creating an additional tier.

The order should not create anxieties about additional bureaucracies or the notion that the difficult economic times that we are in would flatten aspiration. If the extension of democracy depended on levels of economic growth and levels of well-being, we would have to say that an awful lot of developments in democracy have taken place against economic backgrounds vastly different from the position that modern democratic states in the main enjoy today. After all, our own nation’s democracy was scarcely won at a time of great economic flourishing and neither the American Revolution nor the French Revolution—steps forward in democracy—took place against a background of enormous optimistic hope. In fact, people were fighting against being taxed in periods of considerable economic difficulty. Therefore, I do not accept that argument, which is also too limited. The noble Lord, Lord Roberts, does himself a disfavour in these terms.

This is about creating a structure for the future, not just for the next six or seven years of economic difficulty while we pay off debt—I am all too well aware of the strains and stresses that face us in the relatively short term. This order is about enabling powers for the long term. I say to the noble Lord, Lord Roberts, that perhaps, having made his little jibe at the present economic circumstances, he needs a wider and more optimistic perspective on the virtue of this enhancement of democracy in Wales.

Motion agreed.