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Localism Bill

Volume 728: debated on Monday 20 June 2011

Committee (1st Day) (Continued)

Clause 6 : Limits on power under section 5(1)

Amendment 19

Moved by

19: Clause 6, page 4, line 32, leave out “make provision” and insert “make an order”

My Lords, in moving Amendment 19, I shall speak also to Amendments 20 and 24, but I should it make it absolutely clear, in view of the discussion on the previous grouping, that I am not speaking to Amendments 21 and 25 as they are substantively the same as Amendments 22 and 23, which we discussed in the previous group. There is no point in going over them again.

Amendments 19 and 20 seek to change the word “provision” to the “order” so as to assist the Government in making these clauses more understandable. There are two uses of the word “provision” in Clauses 5 and 6. In Clause 5(1) the word “provision” refers to existing statutory provisions, while in Clause 6(1), where I want to make these changes, the word “provisions” refers to an order made under Clause 5(1), so “provision” means two quite separate and different things. For anyone reading the Bill, it is not entirely clear until you have sorted it out that that is the case. It is easy to solve the problem simply by calling them “orders” in Clause 6(1) rather than provisions. They are orders, and while I do not expect the Minister to say that we can have the amendment, I hope that she will look at it and see whether the Bill can be tidied up in this sensible way, or by doing something similar that would satisfy the draftspeople.

The third amendment in the group, Amendment 24, is rather more substantial. It arises from concerns expressed by the Open Spaces Society about the effect that the Bill may have on special pieces of land that at the moment are protected under trust rights. The amendment seeks to insert the words,

“the provision does not remove or amend any trust or right of the public, or repeal or amend any statutory procedure (whenever passed or made) for the removal or amendment of that trust or right”.

The society is worried that even with the limitations proposed, the general powers could be used to enable local authorities to do whatever they want with open spaces and public access land.

Clause 1(1) enables a local authority to do anything that individuals generally may do. It is suggested that the Government either amend the Bill or give a Pepper v Hart undertaking that the Bill or any action under it will not bypass existing legislation in order to authorise a local authority or Minister to use, appropriate or dispose of land which is subject to special protection or conservation, or relax any existing procedures relating to that land.

There are some public interests which are considered so special that they are given particular statutory safeguards to prevent them being easily abolished or altered. One example is a highway, whether it is a motorway, public footpath or anything in between. Another example is an open space or park which may have been subject to a specific statutory trust when first transferred to a local authority, such as under Section 10 of the Open Spaces Act 1906, or is deemed to be held in trust for the use of the public under a judgment of the House of Lords in 1897 known as the Brockwell Park case. No doubt noble Lords have the details of that at their fingertips—I do, but I shall not read it all out in great detail.

The Bill’s general power does not appear to be intended to be extended to relax the existing special procedures for the protection of these public trusts or rights, but there is a risk that attempts will be made to argue that it does so once it is passed. The Government are therefore asked either to insert a provision clarifying this point or at the very least to give an assurance to the Committee today or subsequently.

I have with me a fascinating document which is a photocopy of a Times law report dated July 1897. I would be delighted to read it to the Committee, but will not do so. It sets out the details of the judgment to which I referred.

My final point is rather more modern. The Government are committed under the coalition agreement and various policy statements that have been made in the past year to the creation of a new green space designation. How are such new green spaces, which will be provided under what the Government are proposing, to be safeguarded unless they are held under one of these protective statutes or a restrictive covenant that cannot be easily released? I do not expect the Minister to be briefed on that question, but it needs to be thought about in wider government policy. If it is their intention to provide a significant number of new protected green spaces under some designation or other, which is the Government’s excellent policy particularly in urban and suburban areas, how are they to be protected? Whether the Minister can dig out any information on the latest government thinking and let us know about it, I do not know, but it would be very helpful if she could. I beg to move Amendment 19.

Can my noble friend enlarge on his Amendment 24? I am not quite sure that I understand it correctly as he has proposed it. Does it mean that any current public open space or public access land could not be altered even if a local community wanted it? He will be well aware of cases where, following subsidence of cliffs, footpaths have had to be altered. I would hate to think that, in some way, his well intentioned amendment would restrict what local supporters of open access might be able to do. Has he considered that problem?

I am not a lawyer but lawyers could look at the amendment to see whether the wording is wrong. The amendment is not intended to apply to access land designated under the Countryside and Rights of Way Act 2000, whether it be mountain, moorland, heath or down; it is also not intended to apply to commons because they have separate protection under the Commons Act; nor is it intended to apply to coastal access land covered by the 2000 Act. It is intended to apply to open spaces such as local parks, local mini parks, amenity land and so on which have been provided in the past under a trust deed or conditions of transfer to local authorities. I am no expert on this—nor, I imagine, is the noble Baroness—but it is intended for land which is protected not by general legislation but which has particular circumstances and particular legal conditions attached to it.

Perhaps the Minister will clarify this when she responds because I am still not quite clear. If local people decide that they want to alter the space, or whatever it is, I am concerned that if the amendment goes through as it stands that would not be possible. I still may not be right and I should like some clarification.

My Lords, I shall start with Amendment 24 because the noble Baroness, Lady Byford, has asked me to clarify what it means. I do not know because it is not my amendment. It is the amendment of the noble Lord, Lord Greaves.

I am also not sure of the problem that gives rise to Amendment 24. I suggest that the noble Lord and I talk about this before the next stage because there is clearly something in his mind about trusts. I do not think it is affected by the Bill but he perhaps still sees it as a problem. I shall give him my answer and then he can consider whether that is necessary.

The order-making power in Clause 5(1) can be used only to remove restrictions and limitations that stop a local authority from acting as a natural person does. It is not a general purpose tool to remove any obligation placed on local authorities such as the removal of trusts or safeguards associated with particular public interests. In exercising the power, the Secretary of State is bound by his own obligations under the Bill in relation to the conditions safeguarding any protections, rights and freedoms which, in our view, provide sufficient safeguards against the removal of any statutory trust in relation to open spaces or parks. I think that answers the noble Lord’s question and perhaps he will advise me whether that is so when he comes to reply. If not and he is still worried about it, we might have a word before we get to Report.

Amendments 19 and 20 reflect a preference for the word “order” over “provision”. Although it possibly makes little difference in practice, we believe that “provision” is right because there may be cases where one order deals with a number of provisions and each provision should meet the tests set out in subsection (2).

We believe that Amendments 21 and 22 are unnecessary. The power is a power to remove statutory restrictions. If the same thing can be achieved in a different way, then it is hard to see how they could be statutory restrictions in the first place. So if an order is unnecessary, I am sure that that would be brought to our attention before it was ever passed.

Amendments 23 and 25 were not spoken to by the noble Lord. As for Amendment 24, this would also be governed by the third and fourth conditions set out in subsections (6)(2)(a) and (6)(2)(b), which say that the provision should be “proportionate” and should strike a “fair balance” between competing interests. However, the noble Lord will tell me whether he needs to discuss this matter further before the next stage or will accept what I have said.

I am most grateful for the Minister’s response. On Amendment 24, I shall take further soundings from my advisers on the matter in the light of what she has said. If necessary, I shall take up her offer—I thank her very much. On the other amendments, I shall reflect on what she has said, because she clearly made a substantive point that I had not previously considered. I thank her for causing me to use some more brain power on that matter. On that basis, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Amendments 20 to 25 not moved.

Clause 6 agreed.

Clause 7 : Procedure for orders under section 5

Amendment 26

Moved by

26: Clause 7, page 5, line 27, leave out “negative,”

My Lords, there are three short amendments here. The first simply reaffirms previous amendments, which would leave out the possibility of a negative as opposed to an affirmative order. The second is slightly different in character and deals with the Clause 8 reference to an eligible parish council on which the general power might be conferred, eligibility being to be determined by the Secretary of State under Clause 8(2). The point of the amendment is to focus attention on the fact that at this stage we have no idea what would constitute an eligible parish council and to invite the Minister either to get that on the face of the Bill or to make the intention clear. It would be ridiculous, in our submission, if we were to leave the Bill in a state whereby a tiny parish council would have the full range of general powers of competence. I realise that that is not the intention, but it should be clarified during this legislative process.

Finally, Amendment 28 again refers to the issue of the affirmative rather than negative procedure. I will not again rehearse those arguments. I beg to move.

My Lords, on the affirmative business, I think that the noble Lord and the Minister will know that the proposal has our support. It seems that the Government are looking hard at recommendations made by the Delegated Powers Committee. We look forward to their comments in due course, but there is clearly a head of steam round the House over this, and I hope that the Government are sensible.

On the question of parishes, I have seen a draft version of the proposed order. I am not sure how widely it has been circulated or what its status is, except that it has “Draft” stamped all over it. It would be very helpful if it could be circulated widely. I think that it is a good order in its present form; it makes it much easier for a parish council to become eligible than it is under the present set-up. We will find out whether the noble Lord, Lord Beecham, will also think that it is good, since it may well apply to quite small parish councils. There is no point in discussing that further today—but clearly, before Report, it needs to be in the Library of the House so that everybody can see it.

My Lords, I confirm that the statutory instrument relating to this is in the Library and has been there since 15 June.

Clause 8 defines local authorities for the purposes of the chapter, which are the bodies that will have the new power. By restricting the definition to “eligible” parish councils, the clause provides a power for the Secretary of State to set conditions by order for which parish councils will have the general power.

We are not making the general power of competence available to all parish councils, as the noble Lord suggested. Our view is that, given the breadth of the power and the widely varying circumstances of parish councils, there should be some criteria in place to demonstrate that the parish is representative of its community and has some understanding of the power to help to prevent misuse.

The draft statutory instrument that we made available to the House in the Library on 15 June indicates our intention that, to access the power, two conditions need to be met. These are that two-thirds of the councillors are democratically elected and that the parish clerk has received training in the use of the new power. These criteria have been discussed with the National Association of Local Councils and other interested parties.

Our aim is to ensure that eligible parish councils will be able to use the new power at the same time as other local authorities—an improvement over what happened with the existing well-being power, which was extended to some parish councils only in 2009. However, the noble Lord asked me particularly about the criteria, and those are the criteria that will be in the statutory instruments.

Amendments 26 and 28 are being considered. I will come back on these at a later stage.

I wonder if the Minister could help me on one point, although I have not participated in this debate. Is the order in the description of eligible parish councils for the general power the same one that will run for parish councils for neighbourhood planning?

My Lords, I would have to get an answer to that for the noble Lord. I am not sure. This specifically refers to the general power. I think that it might be different for neighbourhood planning where there is a parish council, but I would like to be sure. Perhaps I can wave my hands and find out. No one seems to know. If my runner, my noble friend Lord Attlee, can achieve something, we can deal with this. I think that the noble Lord has asked a question that we will need to give a written reply to.

Amendment 26 withdrawn.

Clause 7 agreed.

Clause 8 : Interpretation of Chapter

Amendments 27 and 28 not moved.

Clause 8 agreed.

Clause 9 : General powers of certain fire and rescue authorities

Amendment 29

Moved by

29: Clause 9, page 8, leave out lines 33 to 41

My Lords, I shall speak also to Amendments 30 and 31. I am seeking some clarity with the probing Amendments 29 and 30. The Bill extends the general powers of fire authorities. We discussed that at Second Reading and we understand the reasons why, but concerns about the power of the Secretary of State to then prevent fire and rescue authorities from using those powers or place conditions as the Secretary of State may dictate by an unamendable order have already been raised by both my noble friend Lord Beecham and the noble Lord, Lord Newton of Braintree. The issues around scrutiny have been well rehearsed and could apply equally to these clauses on the fire service.

I have a few other questions, and seek clarity from the Minister if she is able to assist me on this. In Clause 9, I seek to understand why new Section 5C makes changes to the Fire and Rescue Services Act 2004 and why new Section 5E contains the procedure for the Secretary of State’s orders for new Section 5C. New Section 5C(1) and (2), as the Minister said earlier, ensure that if there is a statutory provision that curtails the new rights and powers of a fire authority, or if something overlaps, they can be removed, and there are procedures for the orders there.

It would be helpful to have an explanation on this. When the Secretary of State is seeking to put forward orders under new Section 5C(1) and (2), he has to follow a procedure. He has to consult and he has to publish a draft of the order and an explanatory document outlining the proposals, giving reasons for the order and outlining any consultation that has been undertaken, any representations that have been made as a result of that consultation and any changes that have been made. However—this is what I fail to understand—that procedure does not apply under new Section 5C(3) and (4). There is no guidance and no provision for the Secretary of State to use those powers—other than to consult—for new subsections (3) and (4). There is no duty to publish the consultation or to give information on any changes that have been made.

New Section 5A, which will be inserted into the 2004 Act, gives new powers to allow the fire authority to do pretty much anything that it thinks is appropriate or incidental to its functions, but it is then constrained by the Secretary of State, who can in effect withdraw that right by order, as long as he consults. I find it difficult to understand why there is no guidance, no process and no criteria by which the Secretary of State’s actions can be judged to be reasonable or appropriate. That could make things extremely difficult for a fire and rescue authority. Having told the authority that there are virtually no boundaries, as long as what it does is appropriate to its functions, however incidental, the Bill then specifies boundaries but does not say what those boundaries are, other than that they can be changed by the whim of the Secretary of State as long as he consults. Issues of parliamentary scrutiny have already been raised, but there are wider implications relating to why the process that is outlined in new Section 5E, which is similar to the process for the new powers of competence given to local authorities, is not applied to new Section 5C(3) and (4).

Will the noble Baroness say what guidance will be published for the fire and rescue services, so that they know what the boundaries are? What criteria will the Secretary of State use? These two new subsections give the Secretary of State the power to prevent fire and rescue services from doing anything that they want to do or allow the Secretary of State to put conditions on that. Unless they and the Secretary of State know what the boundaries are, the Secretary of State seems to be able merely by order to prevent them from doing anything that they have chosen to do.

Will the criteria that are used, whatever they are—they are not in the legislation and I am not sure that they will be published at all—be the same for all fire and rescue authorities or will they be performance related in some way? It would be helpful to know why the procedures provided for the Secretary of State in new Section 5E apply to subsections (1) and (2) of new Section 5C but not to new subsections (3) and (4). I do not understand the logic of that. I understood the noble Baroness to say that the reason for the powers in new subsections (3) and (4) was to safeguard finances but that there were no plans to use them—these situations would be rare. However, I do not think that that is adequate when we are putting into legislation something that we feel we may not often use. I am sorry if the argument is rather complex, but I find it difficult to understand why no process is in place for orders relating to what are in effect more draconian parts of the legislation when there is a process for other parts.

Amendment 30 is a probing amendment to seek clarification on what can be charged for. As noble Lords will understand, since the Fire Services Act 1947, fire and rescue services have been allowed to charge for what are known as special services—those that are not their core services. The 2004 Act endorsed that. The Government then consulted on a specified list of 12 special services that could be charged for at local fire authorities’ discretion. To date, not all authorities have charged for all those services, although I note that, with the downward pressure on the fire and rescue service budget, a number of fire and rescue services are now looking to charge for more services and are putting proposals to the authorities. The current position is that the Secretary of State has to set out by order, following consultation, the services for which a fire and rescue service may charge and who it may charge. Those services which are charged for are quite clear and must be specified. The proposals in the Bill are completely the opposite. They basically say that the fire and rescue authority can charge for anything that is not in the list. It is a very limited list, and it is therefore likely to lead to more authorities charging for more services.

I have a number of questions; if the noble Baroness is able to answer them, it will help my understanding. I am not clear about what are regarded as core services. The Bill lists three areas which it describes as emergencies that cannot be charged for, but there are a number of grey areas. The Explanatory Notes for the 2004 Act referred to issues where the fire and service authority would look to give community support. The example was a provision in Section 12 of the 2004 Act which provides the fire and rescue authority with the power to agree to the use of its equipment or personnel for any purpose it believes appropriate wheresoever it chooses. For example, a fire and rescue authority may agree to help pump out a pond as a service to its community. I think that your Lordships would agree that that would be an appropriate task for a fire and rescue service to undertake. However, having given this example in 2004, are the Government now saying that this is a service for which the fire and rescue authority could charge?

Has any assessment been made of the income that is likely to be generated from this extension of charging powers? Has any assessment been undertaken before embarking on this legislation of just how many authorities currently charge and for which services? How is this likely to change? For example, local authorities can charge for animal rescues. Few do, so Mrs Jones’s cat up a tree would be rescued; anyone who was listening to Ronnie Corbett on Radio 4 as we were driving into the House today would have heard his story about this. If a farmer’s cow was in a ditch, for example, most fire and rescue authorities would undertake that. Few would charge for it.

Has any assessment been made of the impact on insurance premiums? There is a lack of clarity, but there is likely to be increased charging for domestic and commercial flooding incidents. If they are a result of intemperate weather causing floods, that could not be charged for. However, a burst pipe could be charged for in some parts of the country but not in others. That could lead to insurance companies assessing the risk of whether or not the householder is likely to claim against their insurance.

I wonder if it is the Government’s intention to seek, through charging, increased revenue for fire and rescue authorities to compensate for the cuts in fire authority budgets. We need greater clarity. It is important to understand exactly what can be charged for by which authorities. The authorities need to know that, as do the public and businesses, who may find an increased burden on them as a result.

Amendment 31 is specific. It proposes that fire safety and prevention issues should not be charged for and should be regarded as a core service. Under the 2004 Act, that was changed. It was stated in the Explanatory Notes that the fire and rescue service already carries out a wide range of activities to promote community fire safety,

“with the aim of preventing deaths and injuries in the home and reducing the impact of fire on the community as a whole”.

This includes fire safety education, especially for vulnerable groups, smoke alarm installation, chip pan safety demonstrations and fire safety checks for households and others. It goes on to say that most fire and rescue authorities undertake training, working with young people, local businesses, agencies and partnerships. This work is currently carried out on a discretionary basis, and the effect of Section 6 would be to impose a statutory duty. Under the Bill, although it is a statutory duty, it is not included in the list of items that cannot be charged for. Is it the Government’s intention that in future fire and rescue authorities’ fire prevention and fire safety work should be charged for? In making the case that they should not be charged for, I refer the noble Baroness to her own department’s fire statistics, which show how many more people now have smoke alarms in their homes as a result of the work undertaken by fire and rescue services, and the fall in the number of deaths as a result of fire safety and fire prevention measures. In 2001, there were 228,300 deaths due to fire. That figure fell in 2008 to 130,000. That is a significant fall. We should praise our fire and rescue services for the community safety and fire prevention work that they have undertaken. It would be a tragedy if that work was now to be charged for and we saw a rise in fatalities as a result of not carrying out the fire prevention work that our fire and rescue services are capable of delivering.

I apologise to the noble Baroness for asking so many questions but I hope that she can offer me reassurance on the points that I have raised.

My Lords, I do not think that I can reassure the noble Baroness about everything at this stage, as she asked a lot of detailed questions of which I had no notice. I will ensure that she receives a full reply to the many questions that she has raised. However, that does not mean that I am not going to answer the other points.

Amendment 29 aims to remove the similar provision in Clause 9; that is, in new Section 5A(1). The aim is to provide the appropriate national authority with powers to prevent stand-alone fire and rescue authorities from exercising the general power to do anything specified, or of a specified description or to set conditions around the use of the power. The noble Baroness referred to restrictions on innovative finance, which I mentioned earlier.

The argument for keeping the provision is also strong for fire and rescue authorities. For example, the power could be used to protect firefighter/public safety or the Exchequer from novel or risky financial transactions. This takes us back to the previous discussion on new Section 5A(1). We are most concerned about any financial arrangements or financial transactions which may or may not be justified and over which nobody has any control, although I admit that that is not covered in the Bill. These provisions provide a necessary safeguard, given the breadth of the new power, to ensure that risks are managed and can be managed.

For a new order made under new Sections 5C(3) and 5C(4), the appropriate national authority must consult and adopt the affirmative procedure. This should ensure that the order is subject to rigorous parliamentary scrutiny.

The effect of Amendment 30 would be to remove entirely the charging provisions set out in Clause 10 in new Sections 18A, 18B and 18C. That would mean that the fire and rescue service would not be able to charge for any functions under the Bill. Charging is optional—it is a “may” in the Bill—and subject to a local consultation. It is capped at up to full actual cost; that is, not for profit. This enables the fire and rescue service to cover its costs for providing services, but it particularly excludes individual and domestic premises.

Fire and rescue authorities are funded to maintain an efficient service. There is no explicit funding for ancillary activities that have increasingly fallen to brigades by default. The noble Baroness made some suggestions about cats up trees and cows in ditches. I have here the words “animal rescue”, which probably amounts to the same thing, and reference to the provision or removal of water in non-emergency situations. Flooding would therefore be covered. There would be other provisions along those lines. Indeed, there is increasing demand for the provision of such services, and that is why the existing charging provisions have been updated in the Bill and why the authorities may make charges.

The noble Baroness will know—she made this point—that charging for some functions has been possible since the Fire Services Act 1947. This power was replicated by Section19 of the Fire and Rescue Services Act 2004. Clause 10(3) of the Bill, which is not removed by this amendment, repeals the Section 19 charging powers in the 2004 Act. Removing the inserted provisions in Clause 10 while repealing Section 19 would mean that fire and rescue authorities would be unable to make any charge for these services.

The noble Baroness also inquired about whether any assessment of insurance had been made. Perhaps I may include an answer on that in my written reply, because of the detail involved.

I turn finally to Amendment 31 about education and reducing deaths. I immediately accept what the noble Baroness said about there having been a welcome reduction in death over the past few years. We believe that fire safety education is a cost-effective means of reducing fire deaths and injuries. Community safety campaigns such as Fire Kills have achieved significant success. Under Section 19 of the Fire and Rescue Services Act 2004, fire and rescue authorities can already charge for giving advice to persons in relation to premises where a trade, business or other undertaking is carried out.

However, it was never the Government’s intention to enable charging for community fire safety or prevention activities, and I will reflect on the best way to achieve our aim. However, I owe the noble Baroness an apology because in my recent letter I said that the Fire and Rescue Services Act 2004 covers the promotion of fire safety as a core function. However, the Bill does not repeal this function and, therefore, fire and rescue authorities will not be able to charge for this service. I apologise for the error in my letter. Our intention was that it should not be possible to charge for core functions such as community fire safety prevention. Perhaps I may make that absolutely clear. Fire fighting and emergency medical assistance are highlighted in Clause 10, proposed new Sections 18A and 18B. We have received advice that as community fire safety and prevention is not excluded from the general charging provision, charging is possible. We will seek further and urgent advice. We need to come back to this issue at Report. Given the advice we have received, particularly on this aspect of charging and cost-effective advice to persons and fire safety education, my complete understanding is that we do not want to charge for them, but in order to make that absolutely clear, we will come back to this issue. I hope that the noble Baroness will not press her amendments.

I am grateful to the Minister for her thoughtful response, which is, I think, confirmation that core functions, as outlined in the 2004 Act, including community safety and fire prevention, would not be charged for. That is extremely helpful. My Amendment 30 was only a probing amendment. It sought clarification on the change from previous statements on what can and cannot be charged for under this legislation. I am grateful to the noble Baroness for her offer to come back and answer my questions in more detail.

What I am trying to get at in Amendment 29—a point she has partially answered, but not entirely—is why the procedures are different in proposed new Section 5C(1) and (2) from those in subsections (3) and (4), under which the Secretary of State can stop a fire and rescue authority doing something or can contain it. I do not understand why the process is different and applies only to fire services, not local authorities. If the noble Baroness can address that issue in her reply, it would be very helpful. I am grateful for the consideration that the noble Baroness has given to my concerns, and I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Clause 9 agreed.

Clause 10: Fire and rescue authorities: charging

Amendments 30 and 31 not moved.

Clause 10 agreed.

Amendment 32

Moved by

32: After Clause 10, insert the following new Clause—

“Integrated Transport Authorities and Passenger Transport Executives

(1) After section 98 of the Local Transport Act 2008, insert—

“CHAPTER 2AGeneral powers98A General powers of Integrated Transport Authority

(1) An Integrated Transport Authority (“ITA”) may do—

(a) anything it considers appropriate for the purposes of the carrying-out of any of its functions, or otherwise for the purpose of improving the effectiveness and efficiency of transport in, through, to or from any part of the integrated transport area (its “functional purposes”),(b) anything it considers appropriate for purposes incidental to its functional purposes,(c) anything it considers appropriate for purposes indirectly incidental to its functional purposes through any number of removes,(d) anything it considers to be connected with— (i) any of its functions, or(ii) anything it may do under paragraph (a), (b) or (c), and(e) for a commercial purpose or otherwise anything which it may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose and to do it anywhere in the United Kingdom or elsewhere.(2) An ITA’s power under subsection (1) is in addition to, and is not limited by, the other powers of the ITA.

98B Boundaries of the general power

(1) Section 98A(1) does not enable an ITA to do—

(a) anything which the ITA is unable to do by virtue of a pre-commencement limitation, or(b) anything which the ITA is unable to do by virtue of a post-commencement limitation which is expressed to apply—(i) to its power under section 98A(1),(ii) to all of the ITA’s powers, or(iii) to all of the ITA’s powers but with exceptions that do not include its power under section 98A(1).(2) If the exercise of a pre-commencement power of an ITA is subject to restrictions, those restrictions apply also to the exercise of the power conferred on the ITA by section 98A(1) so far as it is overlapped by the pre-commencement power.

(3) Where under section 98A(1) an ITA does things for a commercial purpose, it must do them through—

(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or(b) a society registered or deemed to be registered under the Cooperative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.(4) Section 98A(1) does not authorise an ITA to do things for a commercial purpose in relation to a person if a statutory provision requires the authority to do those things in relation to the person.

(5) Section 98A(1) does not authorise an ITA to borrow money.

(6) In this section—

“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—

(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section 98A(1);“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—

(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section 98A(1);“pre-commencement power” means power conferred by a statutory provision that—

(a) is contained in an Act passed no later than the end of the session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section 98A(1);“statutory provision” means a provision of an Act or of an instrument made under an Act.

98C Power to make provision supplemental to section 98A

(1) If the Secretary of State thinks that a statutory provision (whenever passed or made) prevents or restricts ITAs from exercising power conferred by section 98A(1) the Secretary of State may by order amend, repeal, revoke or disapply that provision.

(2) If the Secretary of State thinks that the power conferred by section 98A(1) is overlapped (to any extent) by another power then, for the purpose of removing or reducing that overlap, the Secretary of State may by order amend, repeal, revoke or disapply any statutory provision (whenever passed or made).

(3) The Secretary of State may by order make provision preventing ITAs from doing under section 98A(1) anything which is specified, or is of a description specified, in the order.

(4) The Secretary of State may by order provide for the exercise by ITAs of power conferred by section 98A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.

(5) The power under subsection (1), (2), (3) or (4) may be exercised in relation to—

(a) all ITAs,(b) particular ITAs, or(c) particular descriptions of ITAs.(6) Before making an order under subsection (1), (2), (3) or (4), the Secretary of State must (whether before or after the passing of this Act) consult—

(a) such ITAs,(b) such representatives of ITAs, and(c) such other persons (if any),as the Secretary of State considers appropriate.98D Procedure for orders under section 98C

(1) If, as a result of any consultation required by section 98C(5) with respect to a proposed order under section 98C(1), it appears to the Secretary of State that it is appropriate to change the whole or any part of the Secretary of State’s proposals, the Secretary of State must (whether before or after the passing of this Act) undertake such further consultation with respect to the changes as the Secretary of State considers appropriate.

(2) If, after the conclusion of the consultation required by section 98C(5) and subsection (1), the Secretary of State considers it appropriate to proceed with the making of an order under section 98C(1) the Secretary of State must lay before Parliament—

(a) a draft of the order, and(b) an explanatory document explaining the proposals and giving details of—(i) any consultation undertaken under section 98C(5) and subsection (1),(ii) any representatives received as a result of the consultation, and(iii) the changes (if any) made as a result of those representations.(3) Sections 15 to 19 of the Legislative and Regulatory Reform Act 2006 (choosing between negative, affirmative and super-affirmative parliamentary procedure) are to apply in relation to an explanatory document and draft order laid under subsection (2) but as if—

(a) section 18(11) of that Act were omitted,(b) references to section 14 of that Act were references to subsection (2), and(c) references to the Minister were references to the Secretary of State.(4) Provision under section 98C(2) may be included in a draft order laid under subsection (2) and, if it is, the explanatory document laid with the draft order must also explain the proposals under section 98C(2) and give details of any consultation undertaken under section 98C(5) with respect to those proposals.

(5) Section 98C(6) does not apply to an order under section 98C(3) or (4) which is made only for the purpose of amending an earlier such order—

(a) so as to extend the earlier order, or any provision of the earlier order, to a particular authority or to authorities of a particular description, or(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular authority or to authorities of a particular description. 98E Limits on charging in exercise of general power

(1) Subsection (2) applies where—

(a) an ITA provides a service to a person other than for a commercial purpose, and(b) its providing the service to the person is done, or could be done, in the exercise of the general power.(2) The general power confers power to charge the person for providing the service to the person only if—

(a) the service is not one that a statutory provision requires the authority to provide to the person,(b) the person has agreed to its being provided, and(c) the authority does not have power to charge for providing the service.(3) The general power is subject to a duty to secure that, taking one financial year with another, the income from charges allowed by subsection (2) does not exceed the costs of provision.

(4) The duty under subsection (3) applies separately in relation to each kind of service.”.

(2) Chapter 3 of Part 5 of the Local Transport Act 2008 is repealed.

(3) In section 9A of the Transport Act 1968, after subsection (2) insert—

“(2A) Chapter 2A of Part 5 of the Local Transport Act 2008 applies to the Executive of each integrated transport area as it applies to the Authority.

(2B) The powers exercisable by an Executive by virtue of subsection (2A) are exercisable by the Executive in its own capacity.”

(4) In section 1(4) of the Local Authorities (Goods and Services) Act 1970, after the words “and any joint authority established by Part IV of the Local Government Act 1985” insert “and any passenger transport executive established under section 9 of the Transport Act 1968”.”

Amendment 32 introduces a new clause related to integrated transport authorities and passenger transport executives. The form of the clause should come as no surprise, as it was moved in exactly this form in Committee in the other place. Indeed, if we took it forward at Report, it would need some updating—for example, to touch on some of the issues we discussed earlier on Clause 5, and so on. In that debate, the Minister, Andrew Stunell, said:

“Integrated transport authorities and passenger transport executives are the responsibility of the Secretary of State for Transport. I am sure that he will be interested in the points that have been made, so I will ensure that the relevant parts of Hansard are drawn to his attention. I am sure that the appropriateness of the available powers is something that he will want to consider in light of the views of the sector and, more widely, of the local government community”.—[Official Report, Commons, Public Bill Committee on the Localism Bill, 10/3/11; col. 961.]

The purpose of retabling the amendment is to give the Minister the opportunity to give us an update.

Noble Lords will probably be pleased to know that I do not propose to go through the amendment line by line, but perhaps I could spend a few moments to explain what it would do and why for those who have not joined our debate before. The new clause would give the six integrated passenger transport authorities a general power in recognition that integrated transport authorities are single purpose authorities. The provisions have been drafted using the same structure as those setting up the general powers for fire and rescue authorities, but with changes to reflect the differences between integrated transport authorities and fire and rescue authorities. The six integrated transport authorities and their passenger transport executives represent the six largest city regions outside London, which are home to 11 million people. The integrated transport authorities and passenger transport executives are the strategic bodies that plan, promote, procure and provide the public transport networks on which those conurbations rely to keep them moving, and which are vital for their development.

The impact assessment on the general power of competence for fire and rescue authorities states:

“Stand-alone fire and rescue authorities will need a similar power”—

to that of local authorities—

“to address the lack of sufficient freedoms and flexibilities to do things that they might properly wish to do which could benefit or contribute to their purposes. Freeing up fire and rescue authorities by providing general powers in the same vein as for local authorities, will therefore … promote the radical devolution of power away from Westminster and Whitehall”.

It would therefore seem perverse, having discussed those powers, if integrated transport authorities were not seen to need similar powers to address the lack of freedoms and flexibilities that may affect what they may properly wish to do.

The major reason why integrated transport authorities require a general power is the straightforward fact that they want to deliver better services more efficiently through collaborative working, which will become increasingly important in current times. It is considered that, without a general power, the integrated transport authorities and their passenger transport executives will not have the legal compass that local authorities will enjoy. Services in the public sector are being challenged to do more with fewer resources and to work in different ways to deliver services. Transport authorities should be able to support growth through local enterprise partnerships, so their ability to work collaboratively across partners will be increasingly important as the new structures develop.

A functional general power would facilitate such working much more readily. It would put beyond doubt the legal uncertainty that might hold back innovative initiatives in metropolitan areas. In non-metropolitan areas, the transport function sits with the local authority, which will have the general power of competence, so there starts to be a divide between transport authorities that have a general power and those that do not.

A general power for the integrated transport authorities and their passenger transport executives would assist them in joint procurement, partnership work and innovative service provision. For example, the Government have said that they want the majority of public transport journeys to be made using smart ticketing by 2014, and they have provided passenger transport executives and Bristol, Nottingham and Leicester local authorities with funding to achieve that. The PTEs are working with Bristol, Nottingham and Leicester authorities on issues such as systems testing, data analysis and ticketing equipment to ensure that that government objective is met in a timely and cost-effective way. However, without any change to the general power of competence, local authorities in those three areas will have that power to engage in joint enterprises and deliver such programmes, but passenger transport executives will not. There are other similar reasons that could be advanced for why these general powers are needed.

My question to the Minister is: please can we have an update on whether the Government will support this general power for integrated transport executives? If the Government do not feel able to support that currently, perhaps the Minister can spell out why she believes that the powers of those transport authorities are sufficient as they stand. The detail of the clause would need some tidying up if we returned to it on Report, but I hope that we could do that with the assistance of the Government. I beg to move.

My Lords, I support the amendment. It is important that we understand the important role that ITAs and PTEs have in those metropolitan areas. I come from one of those areas. We have always had joint board arrangements, of which fire and rescue has been one, and there have been others. The ITA, and the PTE as part of the ITA, needs to have similar powers at least to fire and rescue authorities, although it is better to have a complete power of general competence. Perhaps I may give an example. The Government are keen to have smart-card operations across the country by 2014. That is being led by PTEs in the areas where PTEs have been directly financed. However, three councils—Nottingham, Leicester and Bristol—do not have PTEs, although they are financed for smart-card ticketing and supported by the PTEs from those other urban areas. Unless the Bill is amended those PTEs will not have a power of general competence, whereas the other areas will, as will those three councils. I think that there will be some complications in procurement policy unless that issue is addressed. It will be interesting to hear the Minister’s views on the situation because, as things stand, there appears to be an anomaly.

My Lords, it could be that my attention wandered a little, in which case I apologise to the noble Lord. Looking at his amendment, it appears to me that a number of the powers conferred on the Secretary of State by this amendment are precisely the powers which the noble Lord was arguing earlier should be removed or struck down in relation to local authorities. Perhaps the noble Lord could reassure me where the party opposite is because new Section 98C is a twin of Clause 5, which we were discussing earlier, and new Section 98D is a twin of Clause 7, which we were also discussing earlier. Perhaps the noble Lord would explain where the party opposite lies in relation to local authorities and ITAs.

My Lords, as the noble Lord has said, this was discussed in the other place. My honourable friend Andrew Stunell gave an assurance that this matter would be looked at and that the attention of the Secretary of State for Transport would be drawn to the debate in Hansard, which would have been very much along the lines of the debate here this evening about making decisions on what should be done.

I cannot go further than to say that discussions are taking place between the Secretary of State for Communities and Local Government and the Secretary of State for Transport. I will expect to have details of them in the not too distant future. It would be sensible, if and when we know the outcome of the discussions—and I am sure we will—for the noble Lord to come and talk to me about it before Report, when we can discuss whether the amendment is appropriate and correct. I am happy to offer him that discussion, depending on the outcome of the discussions between the two Secretaries of State.

My Lords, I thank the noble Lord, Lord Shipley, for his support for the amendments. Clearly he is knowledgeable about what goes on in ITAs and PTEs and about the importance of this extended power. The noble Lord, Lord True, was astute to spot that the amendment was a version of one moved in the Commons—it was the original one, tabled before the amendments to Clause 5 and other clauses that we debated tonight. As I indicated when I moved it, if we took this forward on Report we would need to align it with where we were hoping to lead the others.

I am grateful for what is probably a quarter of a loaf from the Minister. Clearly, we will hope for clarity and a decision to be made by the Secretaries of State by the time we get to Report. This is an important issue that we want to take forward, and if we can do so on the basis of agreement, so much the better. I should be grateful if the noble Baroness could keep me and other noble Lords who have an interest in this informed as the discussion unfolds so that we will have the opportunity to consider the matter in good time before Report. Having said that, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Clause 11 : New arrangements with respect to governance of English local authorities

Amendment 33

Moved by

33: Clause 11, page 19, line 32, leave out “Part 1A” and insert “Parts 1A and 1B”

My Lords, I shall speak also to the other amendments in this group. Amendment 33 sits alongside Amendment 85. I will revert to those amendments shortly. Amendments 59 to 62 inclusive seek to make the provisions of proposed new Section 9HF more acceptable. The Delegated Powers and Regulatory Reform Committee described the provisions in their current form as an inappropriate delegation of legislative power. We agree.

New Section 9HF enables the Secretary of State by affirmative procedure to enable or require,

“a … local authority operating a mayor and cabinet executive to confer a local public service function of any person or body on its elected mayor”,

and to transfer a local public service function from any person or body to the elected mayor. Local public service function is widely defined, and public service is defined as a service provided to the public or a section of the public that is provided either under statutory authority or that is wholly or partly funded by central and local government. As the Delegated Powers Committee points out, this is a remarkably wide power and could cover many activities carried out in the voluntary sector, as well as other public services such as those provided by the NHS, the police and other elected authorities. For example, what is done by a local charity—perhaps a housing charity, supported by Supporting People funding—would come within the definitions here. It could also include the functions of integrated transport authorities which we have just discussed and on which an amendment focused.

The amendments press on three areas. Amendments 59 and 60 seek to include in the circumstances in which such powers operate a leader and executive model of governance as well as a mayor and executive model. I acknowledge that further consequential amendments relating to the transfer of functions would be needed, for example, to new Section 9HF(1)(b)—I say this before the noble Lord, Lord True, gets to it. Incidentally, in talking of transfers of functions, I do not see any tax provisions relating to these transfers. Of course, a whole raft of tax provisions, particularly referring to transfers in London, were introduced at the Bill’s final stages in the other place, so I have a query about whether something is due in respect of them.

Amendment 61 constrains the Secretary of State’s powers and prohibits the modification and disapplication of current or future legislation and Amendment 62 is an attempt to deal with both process and criteria. They would require consultation with affected persons. It would also be incumbent on the Secretary of State to set out why the use of these powers would result in an improvement to the existing arrangements. There would also be a requirement to explain how the transferred functions would be carried out in an efficient, transparent and accountable way. Frankly, even these safeguards are probably not strong enough, particularly in the light of the Delegated Powers Committee’s report.

Perhaps in the mean time the Minister can tell us why these powers operate only when the governance arrangements involve a mayor. What would the situation be should an authority with a mayor revert to a leader and executive model? Is this a one-way transfer? Indeed, in what circumstances is it envisaged that these very strong powers would be used?

There is no requirement in the Bill for the transfer of property rights to be paid for on some market-value basis. What can the Minister tell us about how that might proceed? What is the intent? New Section 9HF(6)(a) refers to the transfer of property rights and liabilities which could not otherwise be transferred. Can the Minister tell us what type of restrictions on transfers it is expected could be overridden by these powers? Will he also deal with the point raised by the Delegated Powers Committee concerning the disapplication of the hybrid instrument procedure? Paragraph 29 of its 15th report of the 2010-12 Session states:

“Given the lack of any statutory requirement to consult before making an order under section 9HF, the Committee is concerned that the disapplication of the hybrid instruments procedure—and thereby the opportunity to petition Parliament—leaves inadequate means to ensure private or local interests are taken into account when the power is exercised”.

How does the Minister respond to those comments?

Finally, Amendments 33 and 85 would add to the Local Government Act 2000 a new Part 1B, which would make additional specific provision for when the Secretary of State is contemplating the transfer of a local public service function from an integrated transport authority. The provision would require that there be a consultation involving all district councils in the integrated transport area as well as the relevant ITA. It would also require the Secretary of State, following that consultation, to make a judgment about how a proposed transfer would improve the effectiveness and efficiency of transport in the area. In essence, the amendments are a particularised version of what is proposed under Amendment 62.

The more we examine the powers of the Secretary of State under new Section 9HF, the more concerned we become. I hope the Government will be able to respond positively on some of these points and, in particular, will say how they propose to meet the criticisms by the Delegated Powers Committee. I beg to move.

My Lords, having been vaguely disobliging on the noble Lord’s previous amendment, I have a question for the Minister. I do not expect the answer this evening, but perhaps she has it and perhaps I do not understand the Bill fully. I think the points about each-way transfer, which are included particularly in Amendments 59 and 60, are interesting and potentially important because, if we are legislating for the long term, we must envisage that there may be circumstances in which mayoral arrangements will not be successful or popular and people will wish to make transfers in the opposite direction. I imagine that is possible under the Bill that has been sculpted by my noble friend, but I have some sympathy with the points made by the noble Lord, Lord McKenzie.

I have a question on this which arises from the extremely helpful statement that my noble friend made this afternoon. This part of the Bill contains the provisions about the roles of mayors and chief executives being combined. My noble friend has indicated that that in fact is not going to happen. I have just revisited the amendments that were down to deal with that, and they would have taken out large parts of the clauses that we are now discussing. If they had been taken in a different order, I suspect that the Chairman would have had to say that, if the amendment was carried and all these parts taken out, the amendments moved and spoken to by the noble Lord, Lord McKenzie, would have fallen with them. As it is, that has not happened yet.

Of course, what we do not know—and I hope my noble friend at some stage will be able to tell us—is how the Government intend to implement the concession that she announced earlier today, to my great delight, that the part of the Bill dealing with mayors and chief executives was going to be dropped. I hope my noble friend sees the difficulties we are in: we are discussing a clause, much of which may disappear. I do not want to disappoint the noble Lord, Lord McKenzie, because he has made two or three very valid and interesting points, but it is because of the order in which these have been taken that he is able to discuss those things at all, because otherwise they might have fallen with the amendment to take out the combined roles.

No doubt the Minister will clarify this for us. I have not had a chance to go through all of the amendments that will be affected by the earlier announcement but I did not think that this was one of them. If it were, I would be very content.

I am grateful to the noble Lord for clarifying that, but in fact there are some amendments, that take several pages right out, that were intended to remove this whole part of the Bill.

My Lords, we have removed—or will remove as we go through, as I understand it—the mayoral arrangements associated with referendum mayors. As the noble Lords will understand, there are two sorts of mayors: mayors who are elected by the local electorate under the Local Government Act and mayors who would have been elected under the new provisions. We have now removed the new provisions on shadow mayors and at the same time taken out the mayoral management associated with that—that is the referendum mayors. However, mayors can still be introduced under the previous legislation. On my understanding—and I will need to be absolutely clear about this—the provisions relating to the mayor and the chief executive can still be carried out because a local authority can elect to do it now anyway.

Unless there is disagreement coming from the Box, I will take it that that is what we are talking about now. We swept out so many amendments that, like the noble Lord, I have not had a chance to chase up on those. If that is not the case, I will advise the noble Lord in due course.

The noble Lord has asked a number of questions that, under the circumstances, I will be very chary about answering because I think we need to be absolutely clear what bits are in and what bits are out. I think it would be helpful if I came back to those, and I ask the noble Lord to withdraw the amendment for the time being.

If I may express a view, I have to say that I think that that is the right course because it may well be that when the amendments to reflect the change announced this afternoon have been made, this whole passage of the Bill, several pages of it, may look very different. It would then be necessary to consider which of the remaining parts of the Bill the noble Lord, Lord McKenzie, might still like to amend. At the moment I do not see how we can do that.

My Lords, I thank the Minister for her brief reply. Clearly, we need to get back to these serious issues on Report. I say to the noble Lord, Lord Jenkin, that, from reading the Bill, I understand that this issue is not linked to how someone becomes a mayor; it is focused on a mayor and executive arrangements, however they are created. I do not think that what we discussed earlier would strike those down. If it did, the amendments would become otiose.

Notwithstanding that point, I say to the noble Baroness that there were a series of questions which deserve a serious answer about why this power is limited to mayors and executives, and does not apply to executive and cabinet arrangements. Why is it only that one model that can be the recipient of the Secretary of State’s powers? More particularly, the protections and the fettering of that very wide power that needs to be undertaken is not just my worry—the Delegated Powers Committee is very clear on it. We will certainly wish to return to that.

The noble Lord, Lord True, made reference to an each-way transfer. My main point was that, if it is to apply at all and if sufficient safeguards can be put in, it should be when there are leader and executive arrangements, and when there are mayor and executive arrangements, as well as the supplementary point about what happens if you go from one to the other.

I do not know whether the noble Baroness has any further information as a result of the missive. If not, I will withdraw the amendment and leave the issue until Report but this is most certainly a matter to which we will return, if we have to, on the basis of the point made by the noble Lord, Lord Jenkin.

My Lords, I am grateful for that. It would be helpful if we came back to all this. In the mean time, before Report, I will make sure that the noble Lord and the rest of the Committee have a full answer.

Amendment 33 withdrawn.

Clause 11 agreed.

House resumed.

House adjourned at 9.43 pm.