Committee (2nd Day)
Relevant document: 15th Report from the Delegated Powers Committee.
Schedule 2 : New arrangements with respect to governance of English local authorities
34: Schedule 2, page 189, line 27, at beginning insert “Subject to receiving a proposal under sub-paragraph (5),”
My Lords, this group of amendments concerns governance issues, the part of the Bill to which we now move. The amendments deal with some of the regulations which the Bill empowers the Secretary of State to make. I have a vision of a group of civil servants in the subterranean depths of Eland House employed full time in drafting regulations on all manner of things, many of which we will encounter as the Bill progresses through Committee. In the interests of health and safety, if nothing else, of those who are so engaged and of local government, I suggest that the Government look again at the degree to which they are seeking to regulate.
The amendments relate to Schedule 2, page 189, and seek to limit the degree to which regulation will take place other than at the request of local authorities. Amendment 34 suggests that regulations should be made only if asked for by authorities. Amendment 35 would limit significantly the arrangements that the Government seek to make under these proposals and would ensure that any such arrangements are consistent with the principles of localism and the representative democracy which featured so largely in the initial debate on the amendment proposed by the noble Lord, Lord Greaves. I beg to move.
My Lords, it might be helpful if I speak to my Amendment 37, which is in this group and relates to governance arrangements. I apologise for its rather dense language but it imitates the drafting style of the Bill and I was trying to be as accommodating as possible to the Government. The real issue here is about the relations between lower tier and higher tier authorities, and how we achieve localism where things are done to local people by higher tier authorities.
I have a very live example: before leaving for the House this morning, I received an extremely angry e-mail from a person in my ward asking, “Why on earth are you wasting my money moving bus stops on our high street?”. The answer is that I am not doing that. I have had meetings with TfL asking it not to move bus stops. But it is all being done by a higher tier authority within a lower tier authority without any open consultation with the people affected.
There are many other examples of this kind of thing, and I am sure it does not only go on between London boroughs and regional government—it probably goes on between lower tier authorities and county councils and, in some cases, parish councils. Another example would be the one I cited at Second Reading where, after consultation with local people, we proposed revised parking standards in a neighbourhood. Without holding any public consultation, we received a letter from a higher authority saying that the arrangements were not satisfactory and did not accord with its standards, and we were asked to change them.
I do not wish to unpick the constitutional arrangements between lower and higher tier authorities in this country, but I do not think that the Bill is very localist when it comes to London boroughs. Indeed, it strikingly fails to be localist in that respect. What I am really asking for in the amendment, although I do not expect my noble friend to agree to it at first bite nor do I necessarily want to add to the huge bible of regulation that is emerging from this Bill, is recognition of the important principle here. If we believe in localism, at the very least it should be open to the lower tier authority to be able to say to the higher tier authority, “If you are considering planning changes which specifically affect an area”, such as whether to have high-rise buildings in the centre of Twickenham, which happens to be a live issue in my authority, “meetings should be held by the higher tier authority to gauge the opinion of local people”. It might even be that we could ask officers to come and hold public meetings, or indeed have the right to require that that should happen.
At the moment there is no formal ability for a lower tier authority to act on behalf of its local residents to do what we would regard as absolutely normal in terms of explaining to residents what is going on. It is absolutely inconceivable, if we were planning to change the alignment of a high street in a village or small town centre, that that would be done without prior and detailed public consultation with local people. The purpose of the amendment is to give a lower tier authority such as my own, a London borough, but also those outside London, the ability to propose or suggest arrangements to the higher tier authority to ensure that it conducts itself in a proper, localist fashion in respect of matters that affect local people. I urge my noble friend to reflect on the issue being raised here.
My Lords, I have one amendment in the group and I shall speak to the others. I start by saying that we support the amendments put forward by the noble Lord, Lord Beecham. They form part of a recurring theme in our discussions on this Bill, which is that while the Government’s proposal is that localism should be more prevalent and that there should be more localism in authorities and among local people, it is being done within a highly prescribed framework and is subject to a large number of orders and regulations from the centre. In other words, it is top-down localism, not genuine localism. There is absolutely no reason at all why this amount of central control and prescription of local authorities should take place. It was not the case when I first became a councillor 40 years ago. We had nothing like this amount of central control when the new authorities were set up in 1973 and elected in 1974. It has crept in over the years from both Conservative and Labour Governments, and we are now getting more of it from the coalition.
There is an obsessive view, which I suspect comes mainly from civil servants at the centre in Whitehall, that local authorities cannot be trusted to get on and do things sensibly unless they are provided with thousands of pages of detailed rules telling them exactly how they should do them. It is inefficient, because it means that people cannot adjust things to what is sensible for their area. A huge amount of time and resources is wasted at the centre in putting all these documents together and getting agreement on them—it even wastes parliamentary time; and time is wasted in monitoring all the rules and regulations, with people having to account for the way in which they do things, and then in changing them all when things are not going right. It is a ridiculous way to carry on.
Surely now is the time, in a Bill called Localism, to call a halt to it. I have not counted the number of new rules and regulations that the Secretary of State may make. We are told that there are 142 sets of regulations and orders in the Bill, including statutory guidance and so on, that about half of them are new and that half simply restate existing provision. We ought not to be putting in most of the new regulations and we ought not to be restating the existing situation; we should be using this Bill to get rid of a large number of them. Some are necessary—nobody says that none is necessary—but the degree is ridiculous.
We agree with Amendments 34 and 35, and Amendment 36 is consequent in a strange sort of way on Amendment 34, so we are pleased to be helpful there. We agree with Amendment 38. In our view, the size of an executive in a council should be entirely up to the council, but if it has to be controlled, any changes made by order should apply only if the allowable size is increased and not reduced. The last time we discussed this, which I suspect was in 2007, under the relevant Bill of that year, we argued this case and met with resistance from the government Front Bench, which at that time was being manned by the Labour Party. Rules such as this are neither Labour, Conservative nor coalition; they are the rules of civil servants who want to keep their detailed central control over local authorities as far as they can possibly can.
I was very interested in the amendment spoken to be the noble Lord, Lord True. The problem that he indentified is widespread. The noble Lord talked about the situation in London, which I do not have direct experience of. I do have direct experience of the situation in Lancashire, which is typical of many two-tier shire counties. They are two-tier for very good reasons: county councils are much bigger and cover a much bigger area, and decisions are often taken a long way from where they are carried out. The degree of public information and consultation which takes place on all sorts of projects is far less than if it were being carried out by the district council. That is partly because decisions are often taken by officials or, if they are taken by councillors, it is not obvious to local people that they are being taken. There are many decisions. In my part of the country, Lancashire, most of the boroughs used to have substantial agency agreements with the county councils to do a lot of the highways work. Most of the local highways work was carried out by the districts. It was carried out in the normal way that district councils carry out their work. Open meetings are held; the local press attends them; they are reported in the local papers; and there are lots of councillors involved who tell people in their wards what is going on. That does not happen on county councils because of the much bigger scale of everything. I am not saying that they do not want to tell people; it is just the way the system works. Three or four years ago, Lancashire County Council decided in its wisdom to take back all these highways powers, and things nowadays are done much less openly and transparently. For people to find out what is being proposed, they have to look at public notices in local newspapers which are in six-point or eight-point type and are not the kind of thing that people tend to read every week.
So things have changed. Lancashire County Council knew that there was a problem and two or three years ago set up what they called Lancashire Locals, which were regular monthly meetings in each borough in the county at which a whole range of county council issues were debated and considered. In some cases, such as traffic regulation orders, those Lancashire Local meetings took the decisions. They consisted of half the local county councillors in each borough and an equivalent number of borough councillors; it is a genuine joint committee. It had decision-making powers, and even on matters where it was not making the decisions, such as building new youth centres, the reports were presented, the local press turned up and a lot of members of the public took part. I pay tribute to the Labour county council, as it was at the time, for introducing that. Unfortunately, when the Conservatives took over Lancashire County Council last year, they closed down the Lancashire Locals and it is now very difficult, even for people like me as a borough councillor who wants to keep in touch with what is happening in my part of the area, to find out what is going on. You can find out, but you have to spend a lot of time trawling websites and obscure agendas and so on. It really is quite difficult.
I am not sure that the wording of Councillor True’s amendment—I give him his higher title of the noble Lord, Lord True—is exactly the way to go but the spirit behind it we very strongly support. Amendment 37A, which is in my name, would give a local authority the power to choose whether, when it appoints its executive, it is done by an ex cathedra announcement by the leader of the council or whether, at the annual meeting of the council, it can do what councils have been doing for the past 10 years in most cases and decide itself who should be on the executive. There are arguments both ways. It should not be a matter for central prescription. Local authorities should simply be allowed to choose the way to do it. Having this variety will not cause the whole structure of local government to collapse. It would simply be one more relaxation of central legislative controls allowing local decisions to be made, which is surely what localism is all about.
My Lords, I have discussed with the Local Government Association and London Councils the central point which my noble friend Lord Greaves has referred to. This is a huge Bill and, as my noble friend has said, it is full of all sorts of prescriptive powers which tell local authorities what to do and how to behave.
I do not think that those who drew up most of the provisions of the Bill have taken on board what is meant by the general power of competence. We discussed this at the previous sitting of the Committee and a number of points were made. Local government bodies find themselves almost powerless to decide what should be excluded from the Bill or be written in far simpler terms to acknowledge that, with the general power of competence, they are perfectly capable of making up their minds as to how they wish to run their affairs.
I am not going to dwell on this subject—I certainly do not wish to take up a great deal of time—but I say to my noble friend that I find it disappointing that the opportunity has not been taken to accompany the general power of competence with a radical relook at how far central government has to prescribe so many detailed rules—either through taking powers by regulations or by spelling them out in the Bill—telling local authorities how to behave. In my discussions with, particularly, London Councils, it has simply said that it would be an entirely different kind of Bill if that were to happen. I have the greatest sympathy with its view that it is impossible to think how one might amend the Bill in order to achieve the inevitable consequence of giving local authorities a general power of competence. It is what the authorities have been clamouring for for a long time—and here it is. But what are the consequences? Whitehall is still going to tell them what to do and how to behave in very great detail. With all the additional regulations to which the noble Lord, Lord Beecham, and my noble friend Lord Greaves have referred, it will get ever more complex in giving directions.
It is very disappointing that we still have this mass of detailed, prescriptive legislation for local authorities which has entirely failed to take account of what is intended to be a genuine new start for them with a general power of competence. I do not think there is anything we can do about it in Parliament. We could say, “Take this Bill away, rewrite it and recognise the general power of competence”, but that option is not open to this House when the Bill has already been through another place.
I hope the Government will recognise that there is a deep sense of dismay. The more one looks at the details in the Bill, the more one has to ask oneself the question: where is the general power of competence? What was the Bill supposed to achieve if it was not to achieve the aim of letting local authorities use their position, their power and their accountability to their own electorates to make their own decisions on a great many matters?
I recognise that there may be cases—my noble friend Lord True made this point—where there is a need to protect one tier against another and where there needs to be some kind of protection for council tax payers and so on. However, as I plough through the Bill, look at the amendments and have meetings with a number of representative bodies, I am dismayed by the thought that we have to deal with a local government Bill—although it is called the Localism Bill—which bears such a close resemblance to everything that Parliament has had to consider before.
I shall not repeat this on every occasion—it would be a waste of the Committee’s time—but I feel quite strongly that a great opportunity has been missed.
My Lords, I associate myself strongly with the comments of the noble Lord, Lord Jenkin. I know from conversations that Ministers are gaining some private amusement from the number of times that local authorities are asking them when guidance will be issued. They are saying that local authorities cannot get hold of the idea of localism—that they will be allowed to do what they want to do and guidance will not be issued. The reason for this is that local government has for years and years become increasingly used to detailed guidance and regulations being issued. It has come to expect it and at times to require it. It will take a little time to adjust to a change of culture—if, indeed, there is one.
When Ministers had the good, original idea for what we now call the Localism Bill, it received a wide general welcome in outline across the board before the Bill was published—I stress, before the Bill was published. The idea of a Bill on the concept of localism—whatever we mean exactly by that, and we have had that debate—which devolved more power and responsibility to local authorities and enabled them to act and do things in the way that best suited them and their local conditions was of course going to be recognised. However, I suspect that as work on the Bill went on in ever more detail the usual risk aversion came into play, and those drafting the Bill looked increasingly at the dreadful fears of “what if” and “supposing that” and came up with a Bill which, as the noble Lord, Lord Jenkin, and others have eloquently said, does anything but set local government free. It both prescribes and allows the Secretary of State to prescribe in extraordinary detail many of the things that local government has grown used to expecting. If we are to break that kind of dependency culture, which much of local government now has, we need a different approach from that contained in or allowed by much of the Bill.
My Lords, I support the amendment of my noble friend Lord True. In doing so, I declare an interest as a district councillor.
I should like to give the Government and the Minister an example. Norfolk County Council, which is the senior authority of my own district authority, tried to impose an incinerator in Norwich but found that it was unable to do so because of the unpopularity that this aroused and the fact that no one would sell it the land. Consequently it secretly bought a plot at Kings Lynn and said that it was going to stick an incinerator in there. My district council held a referendum which overwhelmingly rejected this suggestion. The local press has been continually complaining about it; there are meetings; there is massive objection to it. Despite this overwhelming unpopularity, Norfolk County Council is claiming to the Secretary of State that the proposition has universal local support.
I urge the Minister to consider the amendment of my noble friend Lord True because, plainly, there is often unhappiness—the example which I have given is not unique—about bullying by upper-tier authorities of lower-tier ones.
My Lords, I thank noble Lords who have taken part in this quite long debate on the amendment, and I congratulate the noble Lord, Lord Beecham, on introducing it succinctly.
The Bill seeks to remove the current prescriptive and overly burdensome rules and procedures for local authority governance arrangements. I am not sure that I am quite on line with my noble friends behind me because, for instance, the Bill allows councils greater freedom to determine their governance arrangements. We have been asked to allow a committee system ever since the previous legislation, when it was arbitrarily removed by the previous Government. We accept that local authorities, as practitioners, are experts in the field of governance, and that most proposals for additional governance models will come from them.
Amendment 34, on the Secretary of State’s power in Schedule 2 to make regulations on this issue, fails to understand that ideas for new governance models may also come from other sources—from government, local government representatives or other bodies. There seems to be some sort of idea that everything has been forced on local authorities. We are not forcing them to do anything; they do not have to adopt the arrangements set out in these regulations for a committee system and can carry on as they are. These regulations—with the prospect of other, newer forms of governance; I cannot think what they are at the moment but there might be some—give them the opportunity to carry them out if they wish.
The restated conditions in Amendment 35 would do little if anything more than recast the existing provisions in the language of today, rather than the language of a decade ago. They are arguably less demanding, since the explicit requirement that the new arrangements must be an improvement on what is already there has been removed. However, it is hard to imagine prescribing a new arrangement unless it achieved something more than what was currently on offer. In short, I do not believe that these amendments would make a substantive difference in how the powers in this section might be operated.
Amendment 36 significantly weakens the conditions, apparently allowing new arrangements that did not provide for decision-taking in an efficient, transparent and accountable way. I am sure that no one would wish to see this. Certainly we do not.
Amendment 37, as the noble Lord, Lord True, said, is all about allowing a district council, for example, to make proposals for governance arrangements that would improve the accountability of the county council to the people of that district. I think that he also mentioned London boroughs as part of that. Effective collaboration between tiers, shared services and shared chief executives, which are coming about more and more, might all be effective ways of improving local governance. I am not certain that we need more central regulation to achieve this. I noted exactly what my noble friend Lord Howard said, that in his area that did not seem to operate. On the other hand, it is a mechanism that I would strongly recommend.
Amendment 37A would disempower local authority leaders by allowing authorities to resolve that the full council, rather than the leader, should appoint the members of the executive cabinet. I remember dealing with the previous local government legislation, where this was accepted as rather a good move, so I am not certain why we now want to get rid of it again.
I, too, remember the previous legislation, which brought in this new system. I do not know whether it was accepted as a good move, or by whom, but it was certainly not accepted as a good move by the Liberal Democrat Benches in this House, because we challenged it at the time. The point is that if it is such a good move, surely most authorities will continue to do it that way. But if we are talking about localism, why should they not have the choice?
My Lords, we believe that the leader and cabinet model is a good one. We also believe that the leader should be able to select those whom he wishes to have with him. It is a very close relationship, and it is very important that it works well. We think it right for a leader to be able to appoint his own executive team.
Amendment 38 would prevent the maximum size of an executive being set at a figure lower than 10 members. I accept that current experience with 10 members is about right, but I would not accept that future circumstances will be such that, while it might be right to increase the maximum limit of the size of an executive, it might not be right to have a lower limit. I think that that is what the noble Lord’s amendment suggests. Experience demonstrates that 10 is about the right number, and that a lower number may be too little and a higher number too much. Most of these cabinet systems are working quite well as they are. One might also point out that the more cabinet members you have, the more you have to pay. I hope that that resolves some of the questions.
I thank the Minister for her reply and thank the noble Lord, Lord Greaves, for the support that he gave to some of the amendments. In relation to Amendment 37A, in practice there would be little advantage in going along that route. It would be a foolish leader who endeavoured to appoint an executive without the support of his colleagues. He would not last long in leadership, I suspect. In reality, I do not think that this particular provision is required.
On Amendment 38, however, the Minister rather skates over the implications of the Bill as it presently stands. I cannot see any reason why the determination of the size of the executive should not be entirely at the discretion of the local authority. At the very least, it would be wrong to leave the Secretary of State with power arbitrarily to reduce the size of the executive to, potentially, one or two members. Generally speaking, 10 is about the right figure; in the case of my own authority and that of the noble Lord, Lord Shipley, the new administration has actually reduced the number of cabinet members, to use the phrase adopted, from 10 to six. That is legitimate and a matter of decision for the authority. In my submission, it would not be legitimate for the Secretary of State to prescribe that. Given the increasing spread of responsibilities, the partnership arrangements that now exist and the structures that now surround local government, it may well be creating an onerous burden on members of executives if their numbers were to be confined. I hope that the Government look again at this really rather purposeless provision.
The noble Lord, Lord Jenkin, raised the question of principle, which it may be as well that we dispose of today. He asks very legitimately where the power of general competence is in all this. I had the pleasure of working with, or perhaps beneath, the noble Lord when he was Secretary of State for the Environment and chaired the Inner City Partnership committee in Newcastle. He was always clearly committed to local government. The problem is not so much around the concept of general competence as that the Bill, or much of it, rests on an assumption—certainly on the part of civil servants, and perhaps of Ministers of all Administrations—of general incompetence in local government and those who serve in it. I fear that that suspicion lies behind many of the manifold provisions in the Bill which purport to increase the degree of regulation that the Secretary of State can impose, if he sees fit. I hope that on reflection, as we go through the Bill, the Minister and her noble friends will think again about the degree to which they are taking upon themselves a burden that is effectively unnecessary. I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Amendments 35 and 36 not moved.
37: Schedule 2, page 190, line 10, at end insert—
“(6A) A lower tier authority may propose to the Secretary of State that the Secretary of State make regulations prescribing arrangements specified in the proposal if the authority considers that, in addition to the conditions in subsection (5), the arrangements would lead to the increased local accountability of the higher tier authority to residents of the lower tier authority’s area and improve the ability of local residents to influence or participate in decisions affecting their locality.
(6B) No proposal under subsection (6A) may involve the duplication or repeating of meetings, but may propose that the higher tier authority, or a body established by that authority, or its responsible officers should meet or publish details of its meetings relating to matters specifically affecting people within the lower authority’s area within the lower tier authority’s area.”
I would like to move the amendment. My point is twofold. The noble Lord, Lord Greaves, others and I were grateful for the support that was given in the earlier discussion. I think that it underlined the point that decisions are not localist in the way that, in my submission, they should be. We need not have regulations of the kind that I am suggesting might be considered if the lower-tier authority were simply prepared to decide where a bus stop should be on its high street. If the Government wish in their reflections on the Bill to come forward with proposals to localise those decisions then, in the spirit of what my noble friend Lord Jenkin said, I would welcome that. Since I do not anticipate that, though, I am asking my noble friend to consider, before we get to Report, the relationship between the lower-tier and higher-tier authorities.
The problem with the Bill as it is now framed, as I read it, is that a local authority may make propositions to the Secretary of State about regulations prescribing arrangements concerning its own procedures but not regarding arrangements relating to another authority’s procedures that affect activity in its own area. I may be wrong in reading the Bill in that way; if so, at this or a later stage my noble friend may be able to enlighten me. As I read it, though, this great Localism Bill, the principle of which we all support, does not give lower-tier authorities the opportunity to suggest that their own people be addressed in a more localist manner by higher authorities.
I regret if I have not been succinct in making this point, but I urge my noble friend and those advising her to consider it seriously. Our daily experience—my noble friends Lord Greaves and Lord Howard of Rising have given examples—show that these matters affect people in their daily lives. As our consideration of the Bill continues, I urge my noble friend to think further and to come back on this matter at a later stage.
My Lords, I think that the slight difficulty arose because the noble Lord, Lord Beecham, got up to speak before I had a chance to get in. I apologise for not speaking before he wound up on his amendment.
I come with no practical hands-on experience in local government but I want to reinforce the points that my noble friend is trying to make. The noble Lord, Lord Greaves, said that there was widespread frustration, as indeed there is, from parish level up to district level and beyond. I hope that the Bill will in some way resolve some of the difficulties that my noble friend Lord Jenkin of Roding spoke about. We have a great opportunity to try to simplify things and ensure that local communities can act in a manner that is in their own best interests. If we are promoting much more involvement of local communities through the big society, it seems a shame if the Bill is not going to ease some of the situations that different tiers currently find themselves in. I hope that my noble friend will have a chance to reflect on this. If the wording is not right—often it is not exactly what the Government of the day wish—it is the thrust of the amendment that is important. It is trying to ensure that local authorities and local tiers take on that responsibility and do so in the proper, accepted manner. It is also trying to ensure that, where there are disagreements, there should be discussions between the tiers, whichever tiers they happen to be. I commend my noble friend’s amendment.
My Lords, listening to this discussion, I am prompted to remind the House that in 1994 the then Conservative Government established an ad hoc Select Committee of the House of Lords to reveal the relationship between central and local government. I was privileged to be a member of that committee. We took a great deal of evidence at the time from local authorities, government officials and Ministers to review whether the top-down control of local government was in everyone’s interests. The recommendations that we came up with looked closely at the establishment of the cabinet system and the establishment of mayors, and we looked at how local government should not necessarily be thought of, as it was then by central government, to be all the same.
We recommended in our report—it is a long time since I have looked at it—that we should see local government evolving as it was decided by the local community rather than by the centre. I remember that we were struck, when we took evidence from the principal secretaries of the departments, by the fact that they were anxious to see uniformity within local government and not to allow local people to establish different ways of governing as it suited them—indeed, they were anxious to prevent that. That applied to planning, development and local government’s relationship with all sorts of services.
When I first saw the detail of the Localism Bill, I thought that it was another step forward in accepting the recommendations that we had made and that it gave an opportunity to local government to be different and respond to what local people needed rather than to what central government needed. However, I am rather concerned, from the way that this argument is going, that the views expressed in the Bill are not going to provide the freedom that we recommended way back in 1994. Many of those recommendations have now been accepted by central government, but I feel that this might be a step backwards rather than forwards.
I think that I replied earlier because I had not realised that other people were going to take part in this. I hear what is being said by my noble friends Lord True, Lord Howard, Lord Jenkin and now Lord Wade. When we look at the measures in the Bill, I think that most of them will turn out to be liberating for local government. It gives them a general power of competence and greater flexibility in what they can do. On some of the areas that we are legislating about now, we think that it is appropriate that there should be some regulations about how things should be done.
I worry a bit about my noble friend Lord True’s amendment. It asks the Secretary of State to prescribe a route along which the noble Lord and others have been telling us that we should not be going on any other matter, so it does not quite follow. I think that we have discussed across the Chamber before that there are not always good relations between the three tiers of government, particularly if you start with a parish council, but I am not sure that that poor relationship is something that this Government should try to prescribe a route through.
There are many changes taking place in the way in which local government is run. Many new arrangements are having to be made, as I said earlier, about management, about sharing chief executives across councils and districts and about sharing services, all of which ought to make it much easier for local government to avoid the elephant traps that my noble friend is talking about. In the light of the concern that there is, I will reflect on this issue before the next stage. I do not think that I would hold my breath that we will be able to accept my noble friend’s amendments, but I certainly hear the sentiments that have been expressed in the House today.
My Lords, I thank my noble friend for the final part of her response. I take some hope and encouragement from that. I hope that she will reflect on the matter; I certainly will. I had no expectation that my amendment was going to be a perfectly framed answer on this subject. However, I earnestly submit that there is a strong localist argument behind this point. I am content to withdraw my modest localising amendment if perhaps at a later stage the Government might return to me with the withdrawal of some of their rather immodest centralising proposals. I thank my noble friend for her response and beg leave to withdraw the amendment.
Amendment 37 withdrawn.
Amendments 37A and 38 not moved.
39: Schedule 2, page 194, leave out lines 10 to 19 and insert—
“(1) A local authority that is operating executive arrangements, an executive of such an authority or a committee or specified member of such an executive may arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive by an area committee of that authority.
(2) Arrangements for the discharge of executive functions to an area committee made under this section are without prejudice to any other allocation of functions to such an area committee that the local authority may make.”
My Lords, Amendment 39 is the most important amendment in this group about area committees. It seeks to remove most of the central prescription about area committees and how they should work. I will also speak to Amendments 41 and 42 in my name, and comment on the two Labour amendments in the group when I respond.
A theme is developing in the discussions this afternoon. The Bill merely restates the existing provision in the new Section 9EA of the Local Government Act 2000:
“The Secretary of State may by regulations make provision for or in connection with enabling an executive of a local authority, or a committee or specified member of such an executive, to arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive by an area committee of that authority.
(2) Regulations under this section may impose limitations or restrictions on the arrangements which may be made by virtue of the regulations (including limitations or restrictions on the functions which may be the subject of such arrangements)”.
Why is this necessary? Why are local authorities thought to be so stupid that, even though they decide to set up area committees, of which I am a huge fan, they cannot be trusted to do it in a sensible way? Why can they not be trusted to take advantage of best practice in other places? Why can they not be trusted to listen to what people advise, wherever that advice comes from, and do what is most sensible in the circumstances? Why do they have to do it in the way laid down in detail in Whitehall?
I agreed entirely with the Minister when she said in her response to the first group that ideas come from sources other than local authorities. That is absolutely true. Ideas come from all over the place. Good ideas even come from national government and Whitehall. Local authorities can be expected to take account of those, to listen and do what is sensible. Back in 1974 when the new authorities were set up, it was generally thought that the way councils had operated before then was not very efficient and there needed to be changes. The Government set up a committee and the Baines report was produced as a result. It was almost universally accepted by local government throughout the country. It set up policy and resources committees, which were the big new idea of the time, with personnel and finance sub-committees and so on. The idea was that the operation of local authorities would be brought together in a more coherent, co-operative and corporate way, rather than each department of the authority operating in what people would nowadays call its own “silo”. That still happens in some authorities, but it was an attempt to bring it together, just as the idea of executives was an attempt to bring it together.
However, that was not prescribed in regulations. It was published and we all had a copy of it; no doubt some noble Lords still have a copy languishing on their shelf. People adopted it because it was common sense. It was put forward in a sensible, practical way. It was a way forward. Most authorities did not need telling to do it, we just did it because it was sensible. In those days, central government and whichever department it was—the Department of the Environment, or whatever—people trusted local authorities to do sensible things on the basis of evidence published and provided, and to make modifications according to their local circumstances. Why can that not happen now simply in providing area committees?
My Amendments 41 and 42 actually contradict everything that I am saying. I tabled them merely to make a point; I would not wish to pursue them, because I am trying to be far too prescriptive. As a member of an area committee in Colne & District in Pendle, and the first chairman of that area committee when it was set up getting on for two decades ago—the best job I ever did in local government—my only point is that a good area committee consists of all the councillors in their area. That’s what gives it its unique character. Councils have got to accept that some area committees will be controlled by political parties other than that in control of the central council, or none. That is what it is all about: diversity and people on the ground being able to take decisions. Certainly, in our area committee, we take executive decisions. We are also the planning committee for the area and do lots of other things as well. Area committees are wonderful things. However, I would not want to make central prescription about them. I would not want to force councils to have area committees. They may not be appropriate at all in compact urban areas.
Finally, in responding to the first group, in saying that the Government held a view as to the best way forward for executive appointments, the Minister said that they believed it was the best thing to do. I believe all sorts of things. Members of this Committee will believe all sorts of things. The essential point about localism is that you can believe all sorts of things, but you do not impose your beliefs unless they are so fundamental that they have to be followed through. A lot of the things we are talking about now, including how area committees are set up, are not so fundamental that the Government should say that they believe something and everybody therefore has to do it. The Government ought to say “We recommend that this is the best way to do it, but do it how you think best in your area”. I beg to move.
I must inform your Lordships that if Amendment 39 is agreed to I cannot call Amendment 40 by reason of pre-emption.
My Lords, I speak to Amendments 40 and 43 and, in doing so, endorse very much what the noble Lord, Lord Greaves, has said. This is another example of what Tony Blair might have described as “regulation, regulation, regulation”. It is certainly well over the top. In particular, new Section 9EA(2) of the Local Government Act 2000, which he read out, is as classic a piece of Civil Service gobbledegook as I have seen for some time. I guess that, as I go through the Bill, there would be further examples.
Amendment 40 would delete that clause, and Amendment 43 would deal with the prescription as to the size to be covered by an area committee, limiting it to two-fifths. In principle, I would like to see that matter left entirely to the discretion of local authorities. However, if the Government were not disposed to take that view, my amendment would reduce the size of the committee to something which is less like half the total size of an authority and more like what most of us would regard as a manageable area in which it is possible to reflect the views of local communities and members. If the Government wish to have some guideline on this, I invite the Minister to opt for something lower than the proportion indicated in subsection (5) as it now stands.
My Lords, briefly, I support my noble friend Lord Greaves. He certainly has more experience of rural areas than I do, but I speak from the perspective of what he referred to as a “compact urban area” or, more accurately, a suburban area: a fairly small—in terms of area—London borough. We have six local committees on the council as a whole. There are 43 Liberal Democrat councillors and only 11 Conservative councillors. However, because of the political demography, one of those six local committees is still controlled by a Conservative majority.
Each of those local committees has limited executive powers, which we hope will be extended further, and each operates in quite different ways, partly because of the councillors on them and the way in which they choose to react, and partly, and more particularly, because of the nature of the areas that they represent. All of the councillors for those areas are members of those local committees, to a varying extent, and the local residents in those areas come to those meetings certainly to a far greater extent than they attend meetings of our executive. They take part in those committees and, to varying extents, they feel that they are part of the deliberations.
As a council we have not felt it necessary to prescribe in great detail what each of those local committees shall, or shall not, do or how they will, or will not, behave. They behave sensibly, even the one run by the Conservatives behaves moderately sensibly. We demonstrate, in a very obvious way, the difference between a Conservative-run committee and a Liberal Democrat-run committee. That is what democracy is about; it is what we ought to be doing. As a council, we have not felt the need to prescribe it, nor have we ever thought that we should have prescribed it. I commend to the Government the fact that they too should trust local authorities in this case, as we trust local committees.
My Lords, I commend the reply of the Minister on this group of amendments. I advise her to use that exact wording for every group of amendments that we put forward throughout the rest of the Bill; however, I do not say that very optimistically. There are clearly some discussions to be had.
I would just like to respond to the amendments spoken to by the noble Lord, Lord Beecham, and particularly to Amendment 43, which I disagree with fundamentally. In a sense, the amendment reflects the diversity and variety of local government and the representation of local government in your Lordships' House and in this Committee. It is a big-city view, a view of big authorities: in a big city, an area committee of 40 per cent would, in almost any conceivable situation, be ridiculous. However, that is not necessarily the case in smaller authorities.
Perhaps I can tell the Committee the position in my own authority in Pendle. We have five area committees and they range from 32 per cent—these figures are based on mid-year population estimates for 2008—down to 10.7 per cent. The 32 per cent is for the town of Nelson, which has an estimated population of 28,745, which, by big-city standards, is not excessive—it might be just two wards or one and a half wards in some big cities. It would be ridiculous to split Nelson because it is a community with a town centre. You walk from the middle of the town centre and you get to the edge of the town and Nelson stops and you are in the countryside and into smaller communities. I believe that the figure of 40 per cent is right. Quite clearly, there needs to be sensible reflection on the basis of local knowledge in a particular area.
The noble Lord knows that I agree with him on that. It should be left to the good sense of local authorities. It is difficult to see a situation in which you would want a system of area committees where one area committee was more than half, but there might be such circumstances. There might be a district authority with a large town that is surrounded by a constellation of smaller communities. That would be the sensible way to do it. I believe that if it is left to sensible local discretion, the areas will be based on the real communities that exist there in the best possible way they can be defined on a sensible working basis.
I thank the Minister for her interesting reply on Amendment 39 and I look forward to discussions on it. I beg leave to withdraw the amendment.
Amendment 39 withdrawn.
Amendments 40 to 43 not moved.
44: Schedule 2, page 195, line 13, leave out “, in particular,”
My Lords, I shall speak also to Amendment 84DA in the same group, which stands in my name and that of my noble friend Lady Hamwee. My noble friend would certainly have wished to move this amendment but, unfortunately, she cannot be here. It is suggested to us by the Centre for Public Scrutiny, on whose advisory body she serves, and it follows a theme of today's discussion in Committee. The effect of Amendment 84DA is to remove the right of the Secretary of State to make detailed guidance on scrutiny issues. It would remove the statutory force from existing guidance that the department has produced but, of course, local authorities would still be able to use that existing guidance to get some idea of the legislative intent of Parliament.
The centre believes, and I certainly agree with it very strongly, that the maximum possible discretion should be given to local authorities about how they operate their scrutiny function, with primary legislation providing general enabling powers which are interpreted intelligently by councils, councillors and their officers. Scrutiny is a member-led function and, therefore, it seems inappropriate that Government should provide detailed prescription of its operation. That is the same theme with which we have been dealing all day today and I suspect that we shall continue to do so through much of this Bill.
Where a specific need for guidance is identified, advisory information can be developed by the sector which can incorporate the views of the Government but which would be prepared independently and based on the needs and interests of local authorities and their residents. The justification for omitting this paragraph on guidance is a combination of practical reasons and reasons of principle. I beg to move.
My Lords, I do not wish to prolong proceedings, but I have not had an opportunity to say how much I agree with the general thrust of many of the things that are being said. It may be that, at a later stage, it will be possible, through Amendment 84DA, to leave out a “must” and put in a “may”. Those who advise the Secretary of State, and who have the pleasure of writing all sorts of guidance for local authorities, could continue to do so and we could pay due respect to the importance of that guidance and to guidance that came from other sources. Then perhaps everyone would be delighted and a little localism might reign.
My Lords, we are back again to the same arguments that we had on the previous amendment on area committees. It relies on the regulations. I thank my noble friend Lord True for suggesting a way in which amendments might come. I think we need to look carefully at what has been said. Perhaps I need to review this before the next stage to see whether anything needs to be done about these provisions.
My Lords, I am grateful to the Minister for that very helpful response. We are now into the realm of guidance. It seems to me that guidance is a more acceptable face of regulation—or its better looking twin, as it were—but there is a little bit too much of that as well in the Bill. Matters like this can perfectly sensibly be left to individual local authorities and the guidance that other bodies, such as the Local Government Association, would be prepared to offer. I look forward to hearing the Minister’s response. As we go through the Bill, I think there will be many examples where all sides of the House would wish to see precisely that accommodating attitude reflected so that we do not end up on Report with many detailed amendments which should not be dividing us at all.
My Lords, I am very grateful to the Minister for what I interpret as a very positive response. I am sure that we will discuss further how we can best approach this subject and I am sure that the Centre for Public Scrutiny would be pleased to engage in that. As I say, the theme that has run through our discussion today is the necessity to have more control and influence over what local authorities do and the extent to which they should be enabled to have the freedom that the Bill purports to give them. There is a distinction between guidance which has statutory force and disseminating good practice, which good local authorities would be well advised to adopt but should not be required by statute to do so. I hope that when we come to the next stage of the Bill we will be able to reflect that in a more appropriate way. In the mean time, I beg leave to withdraw the amendment.
Amendment 44 withdrawn.
45: Schedule 2, page 198, line 6, at end insert “and shall be chaired by a member of the largest opposition group on the authority”
My Lords, this group of amendments relates to scrutiny. In my view, scrutiny is best achieved by a committee system. A committee system is better at delivering good decisions than a scrutiny system which scrutinises those decisions after they have been made. In other words, you scrutinise as you go.
This is a probing amendment. As we do not have a voting system for local government in England based on proportional representation, some councils can have very large majorities held by one party. This may not be reflected in the votes that were cast but is very often reflected in the number of seats that are won. Good scrutiny requires constant challenge. Scrutiny committees are proportional in their overall membership but it would be advantageous for them to be chaired by a member of the authority’s largest opposition party.
Members of your Lordships' House are aware that I am a councillor in Newcastle upon Tyne. In 2004, when my party took control of Newcastle City Council, we altered the system to ensure that the Labour opposition chaired all our scrutiny committees. I am pleased to say that this year, when control of Newcastle reverted—temporarily, at least—to the Labour Party, chairmanship of the scrutiny committees passed to the Liberal Democrat opposition. Public scrutiny and public confidence in the system of local government would be improved if scrutiny committees were chaired by opposition councillors. That does not mean that a scrutiny committee has to be proportional in any regard other than the number of seats held by each party. However, public confidence in the system would be improved if the person constructing the agendas was an elected councillor of a party other than the one that was in control of the council. I beg to move.
My Lords, I understand where the noble Lord is coming from but there are obvious difficulties with the amendment quite apart from whether or not it is tending towards prescription. For example, I recall a not very happy election in 1986 when I was one of three members of my party on our local authority—
It may have been for others. I did not know that the noble Lord, Lord Tope, was there. In those circumstances, had there been a scrutiny system with four scrutiny committees, under this amendment a member of the opposition would have found himself or herself chairing two scrutiny committees. The principle behind the amendment is a good one but in practice it simply would not work. In my humble view, the so-called “cabinet” system that was imposed on us by the previous Administration has tended, as many of us involved in local government know, to create a potential gulf between the executive members and the back-bench members of the governing party and local authorities have had to work against that all the time. It is vital that back-bench members of the governing party have full involvement—often very sceptical involvement—in the operation of the authority. It is desirable that they should also be given the opportunity to take a leading role in challenging the authority and scrutinising it. This is often the case in many authorities that I know and have visited. It would be outrageous for the opposition party to be excluded from chairing scrutiny committees but equally, as well as being impractical in certain circumstances, it would be undesirable to exclude the back-bench members of a governing party from being involved in taking executive decisions and playing a leading role in scrutiny. Therefore, I am afraid that I cannot support my noble friend’s amendment.
My Lords, I begin by paying tribute to the noble Lord, Lord Shipley, and his colleagues for changing the system that we operated in Newcastle when they took office in 2004. I will let the noble Lord and your Lordships into the secret that prior to that date I had tried to persuade my colleagues at least to emulate the system in another place of a balance of chairmanship of such committees, but with my usual lack of cogency I failed to persuade them at that time. However, they have now been converted by the noble Lord and his colleagues, so things move on.
I entirely accept what the noble Lord, Lord True, has said about the impracticality of the suggestion behind the amendment. I can give a better justification. The borough of Newham has 60 Labour members and no opposition members at all—or at least no overt opposition members—so clearly the amendment would not work there. The Labour Party advice about scrutiny committees is that the relevant duty should be shared. That is national Labour Party advice and I hope that the same is true of other political parties as well. It would make a great deal of sense.
If I differ from the noble Lord it is because, as has rather often been the case, he has tended to view scrutiny as something retrospective and as a case of holding an executive to account for decisions that it has made or is about to make. That is part of the job but it overlooks the forward programming of an authority and the development of policy. One of the great advantages of properly resourced scrutiny is that it allows members to develop policy free of the operation of the whip, which should not apply in scrutiny.
After 24 years chairing committees and leading a council, I was eventually voluntarily dispatched to my Siberian power station; that is, the arts and recreation committee in Newcastle. I found that being a back-bencher was very different from chairing a meeting. As the chairman of a meeting, you had an agenda and if you were any good at it you knew what you wanted, you had a discussion and you got it through. In Newcastle’s case I would have a pre-meeting with 15 Labour members for an hour. That represents an average of four minutes each. The dialogue was not Socratic in its nature. It was not the highest level of political debate and many members were simply concerned to get through the meeting as quickly as possible. By contrast, scrutiny actually allows people to think. Some people found the transition to be rather difficult, but it is welcome.
The whole thing can be summarised for me by my moment of revelation, which came when, having missed a meeting, I went to a meeting of the arts and recreation committee—a very worthy committee with a big agenda —and I read in a minute that a member had raised the question of birds eating grass seed on the Leazes Park allotment. I thought, “Has it really come to this? This is not really an effective way of running things”. I therefore support in principle the executive scrutiny split, provided that scrutiny is adequately resourced.
Subject to those reservations, I generally support scrutiny. I will refer briefly to Amendment 48 in this group relating to new Section 9FC and the guidance being proffered. New subsection (3) states that in exercising the power to refer matters to a scrutiny committee,
“the member must have regard to any guidance for the time being issued by the Secretary of State”.
The notion that 20,000 councillors are going to consult the bible on scrutiny issued by Eland House before they are able to refer something is, frankly, ridiculous. I anticipate that the Minister will acknowledge that this could be excised from the Bill without damage. I invite her so to indicate.
My Lords, I am sure that we will all forgive the noble Lord, Lord Beecham, for paying tribute to my noble friend Lord Shipley. It was a well deserved tribute. Perhaps I may also help him with the problem he enunciated about the London Borough of Newham. Of course, it would make it very much easier for Newham to implement my noble friend’s proposals were we to have proportional representation in local government. For the past 25 years, the first past the post system in local government has very ill served the Conservative Party; it has, throughout pretty well all those 25 years, been most unjustly served by our current electoral system. None of that was what I intended to say. In fact, I rose to speak to Amendment 46 and 47 in this group. My noble friend Lord Greaves will speak to Amendments 49 and 49C.
Amendment 46 is self-explanatory. Its provisions recognise the reality of a situation that in many authorities it is not a single officer who alone has the scrutiny function. That person will inevitably, in most cases, need other officers in the discharge of those functions. That speaks for itself and my amendment is a better way to reflect reality in most authorities.
Amendment 47 is rather more serious. Its purpose, if we are to have this part of the Bill, is that the scrutiny provisions should apply also to district councils. I am sure that my noble friend Lord Greaves has far greater experience. I have no experience of district councils because I am in an inner London borough. I know of no reason why—albeit with lesser functions—district councils should not be treated in exactly the same way as all other local authorities of whatever type in the country, as far as the scrutiny function is concerned. That is why Amendment 47 seeks to remove from the Bill the new subsection that excludes district councils from these provisions.
My Lords, I speak to Amendments 49 and 49C, and I support the comments of my noble friend Lord Tope about district councils. Whether the prescription on scrutiny should exist is a matter for discussion. If it should, then it should apply to district councils as well as to everyone else.
There is a view across parts of the legislation that was brought in 10 years ago that district councils’ overview and scrutiny functions are in some way less important than those of bigger councils. However, for some of the reasons that the noble Lord, Lord True, talked about earlier, because district councils are smaller councils and there are more councillors per elector—often a lot more—scrutiny of local services generally, as well as of their own services, is something that they can do very well indeed.
That leads me to Amendment 49, which removes more classic words. The new subsection states that an “excluded matter”, which I shall describe in a minute,
“means any matter which is … a matter of any description specified in an order made by the Secretary of State for the purposes of this section”.
What major national imperative is there that the Secretary of State should make an order excluding matters from discussion? The matters to be discussed are defined as “local government” matters. This exclusion allows the Secretary of State to produce a list of things that the Secretary of State says are not local government matters and, therefore, under this new section, cannot be referred to an overview and scrutiny committee by a member of the council. This is silly.
I do not know what other provision we are using to do it, or if we are just doing it, but my council has decided on and is getting on with scrutiny of part of the local health service within east Lancashire. It provides a vital service that is not provided by the local authority, although it has some limited influence and joint schemes. However, the local authority is performing some scrutiny. Clearly, it will have to do it with the co-operation of those parts of the health service that are being scrutinised, but that can take place. It may or may not be a local government matter. I do not know whether the Secretary of State wants to exclude it under this provision, but it is the sort of situation in which you should let the local authority get on and do what it wants to do in the interests of the people in the area.
The purpose of the second amendment, Amendment 49C, is probing. It refers to new Section 9FF(1)(b) on page 202 of this compendium Bill and to recommendations relating,
“to a local improvement target which … relates to a relevant partner authority, and … is specified in a local area agreement of the authority”.
I have never really understood local area agreements or got too involved in them, but my impression was that this Government were scaling back on the importance of such agreements and perhaps were looking to abolish them. Perhaps the Minister can tell me where we stand on that.
My Lords, I shall start by saying that I recognise a lot of what I have heard from noble Lords regarding how councils operate. The amendment of the noble Lord, Lord Shipley, would make it compulsory for scrutiny committees to be chaired by the leader of the opposition party on a council. This amendment is unnecessary. I know of many councils that do precisely that, whereby a leader or senior member of the opposition party chairs review and scrutiny meetings. That is absolutely proper, but such a provision does not need to be couched in either guidance or legislation. As the noble Lord, Lord Beecham, pointed out, there may be some areas where there are no opposition members, but the amendment would make such a provision mandatory. There are some areas where all members are Conservatives and the issue is the same. I hope that from the tenor of the debate noble Lords will agree that such a provision is neither appropriate nor necessary, and that we should not return to it. The annual scrutiny survey, which, I must say, I did not know existed, shows an upward trend, with 42 per cent of authorities allocating scrutiny chairs to members outside the majority group. This idea is clearly taking off well enough, without any interference from Parliament.
Amendments 46 and 47 would change the arrangements on designated scrutiny officers, particularly to make it clear that a designated officer could lead other officers in the discharge of scrutiny functions, as well as requiring district councils in two-tier areas to designate a scrutiny officer. Again, the amendments proposed are not necessary. Of course, we envisage that scrutiny will involve a number of officers to support a scrutiny committee. That already happens, it is part and parcel of the way scrutiny committees are run, and indeed in some councils they are completely separate from the rest of the administration so that they are completely independent. It is unimaginable that one scrutiny officer could not appoint somebody to help him. It is certainly not necessary to make that mandatory because I am quite certain that in most local authorities that is precisely what happens. There is nothing to prevent a district council in a two-tier area designating a scrutiny officer but statute does not require this. Noble Lords have made the point that district councils perhaps do not have quite such onerous responsibilities as county councils and therefore it is not mandatory for them to have a designated officer, although of course if they choose to have one they can. That is perfectly in order.
Amendments 48 and 49 remove the requirement on members to have regard to the guidance and the regulation-making powers of the Secretary of State in relation to referral of matters to a scrutiny committee. These powers enable the Secretary of State to ensure that certain important safeguards are in place. Regulations made under the power that noble Lords are seeking to remove protect against vexatious or discriminatory matters from being placed on the scrutiny committee meeting agenda. They also exclude matters for which there are already statutory processes and rights of appeal, such as planning and licence decisions or matters relating to an individual. It is not unreasonable that those matters should be placed before scrutiny committees in the course of their business.
We believe that the existing framework is working pretty well without removing the requirement for scrutiny committees to make reports and recommendations relating to partner authorities and local area agreements. Having said that, I have some sympathy with Amendment 49C, which is seeking to remove the link between local improvement targets and local area agreements—that might indeed become otiose. We are absolutely clear that where authorities operate executive governance arrangements, scrutiny arrangements must be in place. We recognise that scrutiny plays an important role in holding the executive to account and contributing to policy development in authorities. I certainly support what the noble Lord, Lord Beecham, says—that overview and scrutiny committees, like planning committees, should not be whipped. They are clearly committees where scrutiny and challenge should take place and that should not be done against a background of being told what to do.
Amendment 69 would make it mandatory for councils with committee systems to have an overview and scrutiny committee. That is not necessary. The committee system in itself should have a scrutiny role and always did in the past—that was one of the benefits of the committee system. Therefore, that amendment is not necessary.
With the various explanations and assurances I have given, I hope that noble Lords will not press their amendments.
I am grateful to the Minister for her response. In relation to Amendment 69, which I did not address before, scrutiny ought not to be just a matter of looking at the internal workings and policies of the council itself. It should be used, and in many cases is being used, as the noble Lord, Lord Tope, mentioned, to look beyond what other organisations are doing—or not doing, more to the point—in the locality beyond the statutory requirements, for example, that would apply to the health service for authorities with adult service responsibilities. The amendment does not quite address the issue in the terms that perhaps it should have done but I would welcome some encouragement from the Minister for authorities which do not necessarily have a scrutiny committee to use their own committee system for that purpose, and to encourage those to whom application is made for some explanation of what they are doing in a locality to respond as if this were a request from a scrutiny committee. It would be helpful if Ministers said something to support such activity on the part of councils, particularly district councils, which perhaps do not have a full-blown scrutiny process but which may seek to follow the example of other authorities which do have that process to explore the workings of organisations, be they public sector or private sector, and the impact they have on their community.
There is quite a lot of common sense in what the noble Lord has said. I am not going to make any commitments but I would like to talk to the noble Lord before the next stage because I accept that things have changed a lot since the previous committee system was in place, not least partnership working and working across public bodies. It may be that as part of the committee system we at least ought to give tacit acknowledgement to the fact that there may be joint issues they need to discuss. I am not sure whether that needs to be a full scrutiny role or whether it should simply be that the local health authority, or whatever it is, turns up if invited by the committee. Perhaps the noble Lord and I could discuss that before the next stage.
My Lords, the Minister said that there might need to be some modification in relation to local improvement targets and local area agreements. Perhaps she could write and tell me exactly where we are with these now, what their status is and what the Government’s intentions are.
My Lords, before I formally withdraw my amendment, I would like to make two brief points. First, I agree entirely with my noble friend Lord True that in scrutiny there has to be a clear role for back-benchers, particularly those of the controlling party, but there can of course be vice-chairs, and that system works well. Secondly, I hope that the Minister is right that legislation here is unnecessary and will simply bear in mind my amendment should it prove not to be the case. I beg leave to withdraw the amendment.
Amendment 45 withdrawn.
45A: Schedule 2, page 199, leave out lines 1 to 7
My Lords, in moving Amendment 45A I will attempt to speak to the other 31 amendments in this group. I feel sure that your Lordships will be grateful if I do not list each of those 31 amendments to which I am speaking.
These amendments have come from the Centre for Public Scrutiny and would have been spoken to far more eloquently by my noble friend Lady Hamwee, who serves on its advisory board. I shall endeavour to cover them myself. I share the centre’s concern that in some places scrutiny has got a rather bad name. As the noble Lord, Lord Beecham, said earlier, this is partly because it is seen as simply a post-hoc thing, looking back at what was done and might have been done differently rather than as part of a policy development framework, and also because of some of the effects of the rather strict executive/scrutiny split that we have had for the last 10 or 11 years.
Success in scrutiny is about culture and personal relationships, not processes. As it stands, the law makes unrealistic and unreasonable demands on scrutiny councillors and scrutiny functions to act in a certain way. The law is internally inconsistent, causing frustration to members and officers, who feel that they are constrained in what they can and cannot do for apparently no good reason. At no point have these policy constraints been explained by government. They are the result of 10 years of piecemeal changes to the legislation without any coherent thought having been given to the way that scrutiny operates across the piece. The Bill provides an ideal opportunity to take a broad look and make changes that are supported by practitioners in local government. That is what this raft of amendments seeks to do. Again, I can explain in some detail what each of the 32 amendments seeks to achieve. I can see from the expressions around me in the Chamber that your Lordships are keen and eager for me to do exactly that but I will not. I simply say that they seek to cover two key areas where it is considered that scrutiny needs additional freedom to become more effective.
The first of those, which we have referred to previously, is partnership working. Current powers limit scrutiny in the way that they engage with local authorities’ partners. More and more local services are now being delivered in partnership, and it is inconsistent for scrutiny to have only limited powers, as given in the 2007 Act and incorporated into the 2000 Act, to hold those partners to account. Often they provide important local services where there is no real way for local people to exert an influence over how those services are provided. We are suggesting that scrutiny’s powers over partners should be brought broadly into line with those over the authority itself—the power to require attendance at meetings, to require the provision of information and certain rights to make recommendations which go beyond what is provided at present. In particular, we want a general description for a local partner as a class of person, rather than legislation setting out a specific list of named partners, which is inappropriate, inflexible and a highly centralised, top-down, government-know-best approach.
Rather than continue at greater length, perhaps I may say that if the Minister is minded to give a sympathetic response, as she did to Amendment 84DA from a similar source, I am happy to discuss this matter further outside the Chamber.
The other key area that I want to cover is parity for counties and districts. At the moment, district councils cannot engage with partners in the same way as other authorities and they are consequently at a disadvantage when trying to work with those partners to improve services at district level. This bears no relation to the demarcation of executive-side responsibilities between counties and districts. This anomaly, brought in by the 2007 Act, has never been explained and there can be no policy reason for its continued existence.
I hope that the Minister will be able to give as sympathetic a response as she did previously and, in anticipation of that, I beg to move.
My Lords, I support in some measure the remarks of my noble friend Lord Tope. I hear what is said about the Centre for Public Scrutiny and all its recommendations. Equally, I hear all that the Government want to say about scrutiny. I am sure that there are two very worthy industries involved here that may well come together. I support the recommendation that my noble friend has made to come forward with thickets of advice to local authorities on these subjects—may the twain meet.
However, as this debate goes on, I sometimes wonder whether the end result might be that parts of the Government involved in providing guidance and regulations could be hived off as a social enterprise, perhaps co-operating with other areas in local government. They could sell the benefits of their advice to local authorities and we might be able to reduce the size of government and perhaps, in partnership, improve the quality of advice. That is a slightly impish suggestion but, on the other hand, it is not entirely without seriousness.
I particularly support Amendment 47A, which addresses the point made by my noble friend Lord Greaves. I think that it would allow issues that were not technically local government matters to be referred to scrutiny. I support Amendment 48A on a probing basis. It would delete from the Bill the words:
“Guidance under subsection (3) may make different provision for different cases”.
This means that if a member of an authority wants to say to a scrutiny chairman, “I think this is something you need to look into”, first, he has to refer to the existing legislation, which is before us, and look up the bible of guidance that will be issued by the government department. He may then find that that guidance makes different provision for different cases, with scrutiny into this or that or some other circumstances, and he is therefore entering a potential nightmare world. I know that my noble friend, local government and outside advisers do not want to go there, but I return to my general point. I hope that those discussions can take place but I hope that the presiding principle in all this will be to minimise the requirements on local authorities to read, mark, learn, inwardly digest and obey. Let us please have localism.
My Lords, I thank noble Lords for their amendments, and I start by saying that I shall be helpful in relation to some but not to others. As noble Lords have said, the various amendments in the group seek to remove the guidance or regulation-making powers of the Secretary of State—a common theme this afternoon. In each case, the powers enable certain safeguards to be in place. Although noble Lords are critical of regulation, sometimes it is necessary at the same time to protect other aspects with which they are concerned.
Amendment 45A would remove the ability to issue guidance on important matters such as scrutiny chairs, as we discussed on the previous group. Amendments 48A, 48B and 48C would remove the requirement for members to have regard to guidance and the Secretary of State’s regulation-making power in relation to the referral of matters to a scrutiny committee. However, as I said, these powers enable the Secretary of State to ensure that certain important safeguards are in place. We have discussed some of them, such as vexatious or discriminatory matters being placed before a scrutiny committee, which we talked about on the previous amendment. I do not think that it is unreasonable that that sort of aspect should be ruled out of the scrutiny committee’s responsibilities. Some might take that view and some might not but I think it is sensible that they are left with no option about that. As well as rights of appeal, the amendments would also exclude matters that are already statutory processes, such as planning and licensing decisions or matters relating, for example, to an individual. Therefore, I shall not be able to accept those amendments.
Amendments 49U and 49V would remove the ability of the Secretary of State to make regulations to guard against the duplication of requests by scrutiny committees to other partner bodies. They are regulations that seek to minimise the burden on such authorities and make best use of the available information.
Amendments 47A, 49A, 49B and 49D to 49T also look to reform existing scrutiny provisions by simplifying and expanding the definition of “partner bodies”. They would expand the matters in relation to which scrutiny committees may rely on their powers, removing the link to local area agreements—which we have already agreed I should look at—and extending the powers of district council scrutiny committees, among other things, as we have already discussed.
As I said in the debate on the previous group, we do not believe that the existing framework hampers innovative practices by scrutiny committees. However, I have some sympathy with the aims of some of the amendments, and, again, I shall draw them into the discussions that we need to have. They seek to bring up to date the scrutiny regime that sits across various Acts of Parliament in light of recent changes, so it is right that we should look at them.
I am happy to consider Amendments 47A, 49A, 49B, and 49D to 49T. In debating previous amendments, we also discussed committee system authorities and the operation of scrutiny. Our view is that such authorities should be able to choose to have overview and scrutiny committees. Proposed new Section 9JA makes this clear. Removing the section entirely would create confusion. It would be unclear whether committee system authorities could operate scrutiny committees, and what the role and powers of such committees would be if they did. Therefore, the amendment is proposing that is unnecessary.
The provisions that Amendments 87ZB to 87ZD seek to change replicate existing provisions in the Local Government Act 2000, which reflect the important interests that the Church of England and the Roman Catholic Church have in the provision of education, given the significant number of voluntary-aided schools in most if not all local authorities. It is correct that these significant partners in education should by right have representation on the relevant scrutiny committees. Therefore, we do not support the amendments.
With those explanations, the realisation that we discussed some issues when debating the previous group of amendments, and my acceptance of further discussions on some of the amendments, I hope that noble Lords will not press their amendments.
My Lords, again I found that a very helpful answer, and I agreed with most of the comments and responses that the noble Baroness gave. I offer a suggestion about where an assurance at some stage would be helpful. In exercising his powers to proffer guidance, the Secretary of State might wish to consult either or both—preferably both—the Local Government Association and the Centre for Public Scrutiny. One would not want to write the Centre for Public Scrutiny into statute, but an indication that there would be those discussions, particularly with the Centre for Public Scrutiny, which is quite independent, would be helpful in ensuring that the guidance was broadly acceptable to the local government world and beyond. I take the point that it is necessary, in order to ensure public confidence and that minorities within local government are protected—given that the politics can be a little difficult at times—that there should be some guidance on this range of issues. If the guidance were informed by the Centre for Public Scrutiny and consulted on with the LGA, that would be a way forward. The provision does not need to be statutory, but an indication would be very helpful. I do not ask the Minister to respond immediately.
My Lords, as always I am grateful to the Minister for her reply. I rather wish now that I had gone into each amendment in a little more detail, because they are worthy of discussion. I do not accept entirely the responses of the Minister, but now is not the opportunity to discuss them in detail. However, I am grateful for her willingness at least to consider the issues further. As I said, the amendments were suggested by the Centre for Public Scrutiny, which has considerable experience, and an obvious interest, in ensuring that scrutiny, by whatever system, works more effectively and that we learn from the experience of previous years in order to improve it. That is the sole object of my amendments, which I am sure that all noble Lords will share.
We will certainly take the Minister up on her offer of further discussions, not just on the specifics of the amendments—she is sympathetic to some and clearly not to others—but to try to ensure that the Bill achieves what I hope it seeks to achieve, which is to grant local authorities more freedom to conduct scrutiny, to do so more effectively and to do so in respect of other organisations with whom they share services, help to deliver them or play an important part in local communities. Given the assurance from the Minister, I beg leave to withdraw the first in this raft of amendments and will try to keep up as we go through the rest.
Amendment 45A withdrawn.
Amendments 46 to 49V not moved.
50: Schedule 2, page 207, leave out lines 25 and 26
My Lords, the amendment touches on the question of transparency and the openness to the public of meetings. It seeks to reflect what I understand to be the present position, which is that meetings are open unless council committees or executives decide to exclude the press and public, usually on grounds of confidentiality. This might be commercial confidentiality or sensitive staff issues and the like. The amendments in my name create a presumption that the meetings will be open to the public unless there are good reasons for not having them as such. Those reasons clearly would have to be enunciated. It is difficult to find a form of words that fully meets the case. The noble Lord, Lord Shipley, will speak to his amendments, which import the term “necessarily”. However, the question then arises of how one defines what is necessary. There is no simple answer, but it is important to have the presumption in the Bill if we can get it, and I look forward to hearing from the Minister in due course.
My Lords, I will speak to Amendments 53, 54 and 55 in my name. Each is a probing amendment to get confirmation from the Minister that there will be no deterioration in the access of the general public, the press and opposition councillors to meetings and to information. I seek that reassurance because, as the noble Lord, Lord Beecham, says, it is quite difficult to get the right wording. The overriding intention must be that there should be no deterioration in what currently pertains in local government for individuals—the public, the media or other councillors—seeking access to meetings and information. The Bill confers an awful lot of powers on the Secretary of State to make decisions in that area. I understand why that is, but I would be more comfortable if it was absolutely clear to the general public that there will be no diminution in their access to information and meetings.
Perhaps my noble friend would clarify the position. I would like to see a presumption that the meetings will be open, but obviously under certain circumstances access will be restricted. As things stand, it is a case of either/or; there is no presumption that open meetings will be the norm and that meetings held in private will be exceptional. Perhaps the Minister will comment on that.
My Lords, the current presumption of meetings being held in public comes under the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000, with which I am sure the noble Lord is entirely familiar. The general principle of that is that there is a presumption in favour of openness, where key decisions of executives are made.
We are—I hardly dare to say the word—aiming to make new regulations which will remove some of the current prescription that make it clear that there is a presumption in favour of public meetings. As the noble Lord has already said, it is essential that there is some ability for a committee to close its proceedings for private or confidential reasons, but those must not be outwith what would normally be discussed in public. We are going to retain the parts in the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000—I will not go through that again—to ensure that written records of certain decisions must be available to the public. We are also going to regulate how they must be made available so, as a result of what we are proposing, there will not be any deterioration in the right of access to meetings. We will just tidy up to make it clear that, as the noble Lord and other noble Lords have said, the presumption in favour of open meetings is absolutely understood.
Amendment 50 withdrawn.
Amendments 51 and 52 not moved.
52A: Schedule 2, page 207, leave out lines 27 to 30 and insert—
“(2) Except to the extent that regulations under section 9GA(4) prescribe otherwise, meetings of a local authority executive or of a committee of the executive are to be open to the public.”
My Lords, I shall also speak to Amendments 133A to 133C and Amendment 181A, which are in my name. I should perhaps apologise to the Minister and her officials for having given them relatively little time to consider these amendments. I will of course understand if she is not yet in a position to respond substantively to all of these amendments, but I should be grateful if she would undertake at least to consider them and perhaps respond in due course. These amendments are grouped together because they all deal with the application of the Freedom of Information Act to bodies being given greater powers under this Bill and are all informed by the principle that with greater power should come greater accountability. It is a principle which of course, chimes with the coalition agreement. As I am sure the Minister will not need me to remind her, it states:
“We will extend the scope of the Freedom of Information Act to provide greater transparency”.
Amendment 52A is my attempt to deal with the issue raised by the amendments which have just been discussed. It is designed to try to increase the transparency of local authority agreements. For those authorities operating executive agreements new regulations are to be made, as the Minister has just said, governing the circumstances in which meetings and documents must be open to the public. I take it that the assumption behind these provisions is that the new regulations will be brought into force before or at the same time as the new executive arrangements take place. However, if that does not happen and new executive arrangements come into force before the proposed regulations, the default position will be that an executive will be free to decide for itself which of its meetings are to be open to the public and which are to be held in private.
In theory, at least, executives would be free to hold all their meetings in private if they so chose. Amendment 52A reverses that default position. In the absence of regulations—with the best will in the world, regulations do not always appear when Ministers intend— this amendment ensures that all meetings of the executive or its committee would have to be held in public. In my view, that is a better default arrangement than one which permits executives to exclude the public from all of their meetings and operate entirely in private until such regulations are made.
Clearly, this is not the most fundamental safeguard of openness and, as my noble friend Lord Beecham and the noble Lord, Lord Shipley, have said, it is difficult to get the wording right on this issue. Everything will depend on the provision of the regulations that are to come. However, as I understand they are not available yet, even in draft, it is difficult at this stage of the proceedings to comment further. However, I hope that this amendment will be at least a start in bringing transparency to such proceedings.
Amendments 133A to 133C set out to improve the transparency of services delivered by a local authority through others. The Bill envisages that a growing proportion of local authorities’ functions will be carried out for them by other bodies operating under contract. Amendment 133A deals with what information the public can obtain under the Freedom of Information Act about the work done for an authority under contract. If the authority carries out the work itself, all information about that work is subject to the Act but the public's rights to information are less straightforward when the work is done by a contractor.
Section 1 of the Freedom of Information Act establishes that the right of access is to information which a public authority holds. Section 3(2)(b) of the Act provides that information which another person holds,
“on behalf of the authority”,
is treated as being held by the authority itself. However, how much of the information that a contractor holds about the contract is held on behalf of an authority? The answer is not self-evident. The contract itself may specify that particular information is to be treated as held on behalf of the authority or that a specified type of information must be provided to the authority, if it asks for it to help it answer a freedom of information request. Yet what if such a provision applies only to a very limited class of information? The effect may be then to exclude from access any information which is not specifically mentioned.
For example, in 2007, Islington Council received a freedom of information request for information about the criteria used to reward parking attendants for good results. I am sure that noble Lords will know that this is an electrically sensitive issue for many motorists in London and elsewhere in the country. The parking attendants were employed by National Car Parks Ltd under a contract with the council. The rewards included bonus performance payments and points that could be spent at Argos. The requestor wanted anonymised information about the rewards provided to the best performing parking attendants, including the number of penalty charge notices issued by them, the number of complaints involving those attendants and the number of notices subsequently cancelled. The requestor clearly suspected that the incentives were leading attendants to issue as many notices as they possibly could, regardless of any justification—clearly, a matter of considerable public interest.
The council replied that it did not hold such statistics and that the contract did not give it the power to obtain them from the contractor. The Information Commissioner then examined the contract in force at the time and found that it imposed no requirement on National Car Parks to provide statistical information about the Argos points, the performance payments to individual staff or the criteria used to decide who should receive these. He concluded that this information was not held on the council's behalf and not accessible to it under the Freedom of Information Act, yet that information was central to any attempt to understand whether the incentives were encouraging notices to be issued improperly. That is exactly the kind of problem that may occur when people attempt to use the Freedom of Information Act to obtain information about contracts.
Amendment 133A attempts to deal with this issue by stating that any new contract entered into in future by a local authority will be “deemed to include a” contractual “freedom of information provision”. It stipulates that all information about the performance of the contract which is held by the contractor is,
“deemed to be held on behalf of the … authority for the purpose of … the Freedom of Information Act”.
Incidentally, this would also apply to the Environmental Information Regulations, which provide a parallel right of access to environmental information. If such a request for information is made about the performance of the contract, that information would be within the scope of the legislation, even if held by the contractor. No confidentiality clause would be capable of setting that provision aside. The intention is that the public's right to information—that right to “greater transparency” included in the coalition agreement—should be the same whether a particular task was carried out in-house or contracted out.
I should stress that this does not mean that such information will have to be disclosed. The Freedom of Information Act and the regulations contain exemptions to protect legitimate interests. For example, Section 43 protects trade secrets or information likely to prejudice the commercial interests of the contractor or the authority, subject, of course, to a public interest test. Section 40 protects personal information about any identifiable individual, including members of the contractor’s staff, if disclosure would breach data protection principles, and there are other exemptions where disclosure would be likely to endanger health and safety or prejudice law enforcement or defence, or cause other types of harm. I stress that this amendment applies only to contracts made in future. It would not be limited to those resulting from the community right to challenge provisions, but it would apply to any new contact.
Where the contract itself is performed under a subcontract with a further contractor, the same freedom of information provision would be deemed to apply to the subcontract. Where a third party holds information on behalf of the contractor or subcontractor—for example, a surveyor or an engineer—that information is also deemed to be within the range of a FOI request to the authority. The amendment does not seek to bring the contractor itself with the scope of the Freedom of Information Act. Requests would still be made to the local authority concerned and not to the contractor itself. In answering the request, the authority would be able to draw on any information about the contractor’s performance held by the contractor in addition to the information that the authority itself held. The code of practice issued by the Secretary of State under Section 45 of the FOI Act encourages public authorities to consult third parties, such as contractors, before disclosing information relating to them, and such provision will continue under this amendment. There is one important exception to this principle. Legal advice that the contractor has obtained in relation to its obligations to the authority under the contract would not have to be disclosed to the authority under the provision and nor would a subcontractor have to disclose its legal advice about its obligations towards the contractor. Such privileged material about a possible legal dispute would not have to be disclosed.
I hope the Minister will recognise that I have tried to frame this amendment in a way that makes it not disproportionately onerous on contractors. It is not the intention of this amendment to impose a disproportionate burden on very small businesses, so I would quite understand if the Government wished to look at the detailed wording of this amendment—for example, perhaps to place a limit on the size of the contract that would fall within scope of this amendment —and certainly to consult small business organisations on where such a limit would be placed. However, at this stage, I would be grateful if the Minister would at least indicate whether the Government might have some sympathy with the principle of greater transparency that lies behind this amendment.
Amendment 133B would bring companies controlled by local authorities within the scope of the Freedom of Information Act. At present, the Act applies not only to the public authorities listed in Schedule 1 to the Act, but to companies owned by such public authorities. The existing definition of a publicly owned company in Section 6 of the Act is a company which is wholly owned by a single public authority. The Protection of Freedoms Bill, which is currently being considered in another place, would extend that definition to cover a company which is wholly owned by more than one public authority. That is a very welcome provision. It puts right a long-standing anomaly. When I was the Freedom of Information Minister, it was an anomaly that I intended to put right myself, but time ran out, so I am very pleased that the Government are bringing this provision forward in that Bill.
However, a company that is jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. Amendment 133B would bring such companies within the Act's scope. A company in which a local authority owns at least 50 per cent of the shares—again, the Government may want to look at the detailed wording of this amendment, the proportion and exactly how the scope of the amendment should apply—or in which several local authorities between them hold at least 50 per cent of the shares would be subject to the Freedom of Information Act. I think this is fully in the spirit of what the Government are already undertaking in the Protection of Freedoms Bill and is something that ought to be able to command consensus across Parliament in putting right what has been a long-standing anomaly.
Amendment 133C is designed to provide greater transparency for the way in which local authorities discharge their responsibilities under the Freedom of Information Act. For central government, the regular publication of statistics in monitoring central government compliance with the Freedom of Information Act has been important in driving up government compliance with legislation. Local government is not subject to the same requirement, and it is clear that its performance is variable. There are some excellent examples of good practice. I shall cite the Association of Greater Manchester Authorities. It covers 13 local authorities and has a system in place which allows individual local authorities to input on to shared web pages information on: the number of requests received; a breakdown of those requests; the outcomes of those requests; the number of internal reviews; the number of appeals to the ICO; and the length of time taken to deal with each request. The web pages were simple to create and set up using an off-the-shelf IT package and host spreadsheets into which local authorities can input information. It is an excellent example of good practice, but not every local authority matches those high standards.
Many of the issues which most concern people and about which voters most want information fall within the remit of local authorities, and it is clear that there are still some local authorities where the reflex position is to withhold information rather than to publish it. I shall give one brief example from the constituency I used to represent. From the early years of the last decade, there was a growing and desperate need for a local primary school in the area of Oakhurst in north Swindon. Increasing numbers of local parents were desperate for a local primary school. They were having to travel many miles to get their children into a school, siblings were being separated and they were increasingly desperate. Land had been zoned for a local primary school, and the local authority said it wanted to build it but that the Government had not given it the money to do so. So when in 2007 the Government announced a massive increase in capital funding for schools and an allocation of £52 million for Swindon, I said to the council: “Now you’ve got the money, you can finally commit to building this desperately needed primary school”. I also said that if there were any doubts about the nature of the funding, it should contact me and I would clarify it with Ministers.
No one asked me to do that, but what happened was that in January 2008, an officer produced a report saying that the council did not have £52 million and could allocate only £1.8 million to building a primary school and that as the cost would be £7 million, it could not possibly build this desperately needed school. Not a single member of the cabinet in the council challenged this extraordinary discrepancy between what the Government had said was available and what the officer said was available. It was just accepted. I immediately went to Ministers, as I originally offered to do, and within three hours got clarification that however you construed the funding, the council had at least £30 million to build a new primary school, should it wish to do so. I then went back to the council and embarrassed it sufficiently that it had to concede that, after all, when it looked at it again, it had the money to build the primary school. The primary school was then built, but if I had not been the local MP and had not challenged the council, that primary school would not have been built at all, and that would have left all those local parents in a desperate plight.
I believed it was important to find out why this had happened. By any standards, this was a terrible mistake by the council. It had profoundly damaging consequences for very many local parents. There were only two possible explanations: either the council officer was grossly incompetent and the councillors were not doing their duty properly on challenging him on it or there was some sort of political manipulation. The Conservative Party in Swindon was desperate to blame everything on the failure of the Labour Government to fund it as it saw fit. Some local residents, perhaps even more cynically, thought that the council was trying to hold the money back to spend in more marginal wards. It may even have been that the Conservative council thought that an incoming Conservative Government would slash capital funding for education, which, indeed, they went on to do, and did not want to commit to something if a new Government were going to withdraw the funding. Whatever the explanation—to this day, I still have no idea what is was—there is a clear public interest in local residents knowing it. To this day, I and other local residents have failed to get any explanation from the council about what happened in 2008.
This amendment on its own will not solve such problems. If councils are resolute in covering up their failings, it will not stop them, but it will at least help to reveal councils that are less than diligent in observing the letter and spirit of freedom of information legislation and encourage them to raise their game to the standards of excellent local authorities such as those in Manchester.
I stress that this would not be an onerous burden on local authorities. They have the raw data already and are required to keep them under the Freedom of Information Act, so it would be a question only of compiling them. All the local authorities have to do is process them once a year, not quarterly as central government does. Again, the Manchester example shows how easy that would be.
Finally, Amendment 181A seeks to improve the transparency of the work of the Housing Ombudsman. At present, complaints about social housing are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman and are not subject to the Freedom of Information Act, while complaints about local authority housing go to the Local Government Ombudsman, who is subject to the Freedom of Information Act. There appears to be no good reason for this distinction, but in any event the Bill proposes that in future there will be a unified complaints system, with both types of complaint going to the Housing Ombudsman. That transfer of functions might be accompanied by a strengthening of the enforcement powers given to the Housing Ombudsman.
The Bill allows the Secretary of State by order to give the Housing Ombudsman the power to make determinations that have the force of a court order, yet the Bill contains no provision to bring the ombudsman under the Act. I can imagine only that this is an oversight, because if the Housing Ombudsman remains outside the scope of the Freedom of Information Act, the Bill will lead to a reduction in the public’s right to information, as the Act will no longer apply to the body that was responsible for dealing with housing complaints against local authorities. This amendment would quite simply make the Housing Ombudsman a public authority for the Freedom of Information Act. I beg to move.
My Lords, I am tempted to wonder how many pieces of information might have been released during the noble Lord’s exposition of his amendments—doubtless, very many.
I hope that my noble friend will consider sceptically the case that has been made. I am a strong exponent of the principle of openness—we discussed whether there should be a presumption of openness in our debate on a previous group of amendments. I think that I heard my noble friend give a commitment that it should apply to meetings.
The noble Lord is clearly a significant enthusiast for freedom of information, for which I commend him, but again I hope that my noble friend will be sceptical when she examines these amendments, which not many of us have had the opportunity to look at in detail. I asked my chief executive how much freedom of information implementation had cost my authority so far in the past year, to which the response was £120,000. That does not sound like very much but it approaches 1 per cent of the council’s discretionary budget, outside schools. The freedom that has been given is important, but it must be exercised in proportion. In my experience, quite often when someone pursued a freedom of information request they would have been given the answer through the front door if they had simply asked the question, although that clearly would not have been so in the case to which the noble Lord refers.
The noble Lord’s Amendment 52A intends to take these procedures into contractor arrangements, subcontractor arrangements, and doubtless sub-sub-subcontractor arrangements. It would end up creating such a cat’s cradle of bureaucracy for these arrangements that we might well end up, as the noble Lord himself recognised, deterring small businesses from putting themselves within this embrace. I reiterate that I strongly support the idea of freedom of information in principle, but I hope that when my noble friend considers this group of amendments she will, as I said, exercise due scepticism—on behalf of those of us, as publicly accountable authorities, who have to administer open systems, which we do—about the costs that local authorities, and through them their contractors and subcontractors, might incur. With £120,000, I could have created a fairly large number of very useful public assets. Doubtless some of the requests were extremely worth while, but there should be nothing in excess.
My Lords, I think that we should thank my noble friend Lord Wills for giving us the opportunity to debate this issue. He had a distinguished ministerial career and responsibility for this area, which very much showed in his contribution today.
We are living in an era of transparency, which has already been very much the byword of many of our debates on this Bill. We are also living in an era in which there will be increasing partnership working, outsourcing and joint working, very much along the lines on which the noble Lord, Lord Tope, focused when he talked about scrutiny functions in our debate on a previous group of amendments. The focus of FOI in the current era is therefore entirely appropriate.
My noble friend’s Amendment 52A very much chimes with the group of amendments that we have just discussed in its presumption that meetings should be held in public. On Amendments 133A and 133B, he acknowledged—and the noble Lord, Lord True, touched on this—that we need to focus on the practical ramifications of driving freedom of information through a contractor, a subcontractor and then perhaps a sub-subcontractor chain. I am thinking particularly of the construction industry and how diverse and complex some of its contractual arrangements are.
In a sense, my noble friend offered the route to a solution when he said that there should be some sort of de minimis or cut-off point in the application of this. His focus, as he acknowledged, was partly on the business left over from when he was a Minister, but he also dealt with some practical examples, such as Swindon, and cited the Islington Council situation, which is not theoretical but actual.
The noble Lord, Lord True, said on the one hand that he was an enthusiast for freedom of information, but on the other urged his noble friend to be sceptical about it. I am not sure that those two concepts sit very comfortably together.
I do not disagree, but I thought that the noble Lord said that he was also an enthusiast for freedom of information. Maybe I misunderstand him and he is not, but if he is I do not think that that sits with his urging his noble friend to be sceptical.
As I said, my noble friend has given us an opportunity to have an interesting debate on an important subject. In particular, he has done us a service by focusing on particular issues relating to the Housing Ombudsman, and I am keen to hear the Minister’s response specifically to those. His request is not for the Minister to give a detailed response to his quite extensive and detailed amendment but for her to say whether the Government agree with the principle behind it. That is a very important ask, particularly, as he pointed out, because the coalition agreement has a commitment to freedom of information and to extending its scope. This area is worthy of further analysis and I hope that the Minister can give us some comfort on that matter.
My Lords, I thank the noble Lord, Lord Wills, for his fairly extensive exposition on the Freedom of Information Act and its relationship with local government. I am sure that he will forgive me if I say that, not having had any detail of his speech beforehand, I simply am not out of my own head going to be able to answer all the important points that he raised, but I will do my best to cover some of them. If, later, we find something of significance, I will make sure that we write to him in response.
We have already discussed Amendment 52A, as the noble Lord acknowledged. I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed—for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness. We think that it is there anyway but we will underscore it.
My noble friend Lord McNally had hoped to be here because he has an overall eye on freedom of information. While I am very happy to take on anything, that seems to be one step too far, but he has asked me to say, in response to this, that the Government are committed to increasing transparency and that, almost without exception, central and local government are proactively publishing information about their contracts online. As noble Lords know, it is a requirement of government to do that and many local authorities have now taken that up and are doing it, which means that access to contract information is available to anyone who wants to see it. We feel, too, that in what is being done we have struck a balance between commitments to increase transparency and commitments to reduce regulatory burdens, particularly on business. I will go into that further in a minute. We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.
Amendment 133A would impose unacceptable additional burdens on business, similar to those that would be imposed if the Freedom of Information Act was extended to companies—not public companies but private ones. The Government have included provisions in the Protection of Freedoms Bill, to which the noble Lord referred, to extend the Freedom of Information Act with very limited exceptions to all companies wholly owned by public authorities. A few more of those will be coming up in the light of the legislation.
We have considered the extension of the Freedom of Information Act to companies where a majority of shares are owned by any number of public authorities, but to take this step would create uncertainty over which bodies were subject to the Act, particularly as bodies could pass in and out of its scope on transfer of shares. Should there be a strong argument for including a specific body, the option of inclusion through other means, such as an order under Section 5 of the Freedom of Information Act, still remains.
Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that that is a burden that should be borne. Statistics about compliance with the Freedom of Information Act for government departments and a range of other central government bodies are already published voluntarily by the Ministry of Justice—indeed, the noble Lord may have generated this—on a quarterly basis. We would obviously encourage the publication of similar information by other public authorities receiving a significant number of freedom of information requests, including those within local government. The Freedom of Information Act will shortly be subject to post-legislative scrutiny, as I am sure the noble Lord knows, when it will be reviewed to ensure that it is delivering an efficient and effective mechanism by which the public can exercise their right to know and hold government to account.
Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.
I am very conscious that I have not been able to do anything like justice to all that the noble Lord has said. I hope that he will forgive me for that. I have answered some of the questions arising from the tabling of the amendments, although I appreciate that the noble Lord went wider than that to some extent. As I said in my previous commitment, we will go through Hansard to make sure that, if there is anything I have not touched on adequately, we will come back to it and write to him.
I am grateful to the Minister for that reply. Of course, I understand and I apologise again for not having given her and her officials longer to consider these matters in more depth. I am also extremely grateful to the noble Lord, Lord True, and my noble friend Lord McKenzie for their contributions to this debate. I understand what the noble Lord, Lord True, says about the burdens on local authorities. I am well aware that transparency can be extremely frustrating and irritating for all those in executive authority.
The noble Lord is right: I am an enthusiast for freedom of information legislation. I think that I was almost alone among my ministerial colleagues in being such an enthusiast and I have no doubt that the same sentiments as he has just articulated are to be found widely among local authorities. All that I can say to the noble Lord and all those who find this legislation irksome, which I well understand, is that I believe passionately that in the end greater transparency helps to improve the services that we all work to deliver, whether in local government or central government. I wish that I shared his confidence that statutory freedom of information requirements are not necessary, which I think was the burden of his remarks. If I shared his confidence, I would not have put down these amendments. Sadly, I do not.
I am grateful also for the contribution made by my noble friend Lord McKenzie, but most of all I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors and small businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.
I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments—not necessarily to accept these amendments as worded but with the issues behind them—that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.
This Government are committed to greater transparency, but I suggest that, unless these amendments are engaged with in some form or other, we will see the progress towards greater transparency being reversed. I hope that the Minister will be able to write to me to reassure me on that point and possibly even to meet me before Report if she would be so kind, so that we could discuss these issues in more detail. With that, I beg leave to withdraw the amendment.
Amendment 52A withdrawn.
Amendments 53 to 55 not moved.
56: Schedule 2, page 210, leave out lines 8 to 18
My Lords, I am conscious that Amendment 56 is possibly not now the most important or interesting in this group, but we tabled it as a probing amendment with a view to asking the Minister to explain more clearly than is apparent in the Bill itself new Section 9H(3) and (4), which deals with the nature of a mayor and his or her relationship with the council. While I am on my feet, I shall refer to some of the other amendments in this group and, indeed, to others that are yet to come. Again I congratulate the Government on recognising that the whole question of shadow mayors and mayoral arrangements really has no place in a Bill that is about localism. As we discussed at Question Time yesterday, I know that it will be said by some that this is a sensible move by a listening Government, and said by others to be a U-turn. I do not mind very much what it is called; I just feel that the Government are to be congratulated.
I thank in particular the Minister for bringing the decision forward at such an early stage in our consideration of the Bill, which no doubt will save many hours of debate in this Chamber. With that, I beg to move Amendment 56 and I look forward to the debate on the other amendments in the group.
My Lords, I have a number of amendments in this group, and I want to follow on from what the noble Lord, Lord Tope, has said by thanking very sincerely my noble friend for the leadership and responsiveness she has shown on this matter. Those of us who have been present in the Committee today will also have noted the openness, warmth and positive way in which she has responded to a number of the points that have been put forward. We are all grateful for that.
I am slightly confused by the groupings, which have changed a little overnight, perhaps for reasons related to pre-emption or to a number of other points. By the way, I should pay tribute to my noble friend Lord Jenkin of Roding, who played a big part in raising this issue at Second Reading. There was unity across the House that to create shadow mayors before the electors in the cities concerned had had an opportunity to have their say was not a good idea. The Minister then came forward at the earliest possible opportunity to say that the Government had accepted the arguments, so the principle does not need to be debated at any great length, and I do not propose to do so. However, I should give notice, in speaking to the large number of amendments within this grouping, that it should be taken that I have also spoken to Amendments 74A, 77A, 77B, 79A and 81A. They are not in this group, but they relate to the same subject. Even if I have it wrong, I hope that the Committee will accept that I shall not come back to those amendments later, and I repeat my thanks to my noble friend for taking up the point in the positive way she has.
My Lords, the amendment moved by the noble Lord, Lord Tope, relates to the part of the Bill which defines a mayor as distinct from a councillor. I wonder whether that is particularly well advised. I cannot recall the precise clause or paragraph in the schedule that deals with the eligibility of people to stand for election as mayor. It lists a whole series of officers of an authority who may not stand. At the moment, a serving member or employee of a local authority is disbarred from standing as a councillor. If the mayoral position was to be treated for all purposes in the same way as a councillor, you would not need a provision in the Bill to identify all the authority officers who could not stand for that position. Indeed, it could be argued that if you do not treat the mayor as a councillor, you might find that some people are inadvertently omitted but who perhaps should be barred from seeking to be elected because they already hold a position within the authority. My understanding is that the bar will remain in place for some time after their period of service has concluded.
Would it not be sensible for the Government to rethink this provision and simply state, unless there is a regulation the other way, as it were, that all provisions relating to councillors such as declarations of interest and all the rest of it should apply to elected mayors, rather than reverse the procedure and require regulations specifically for the elected mayor which could otherwise be avoided?
In relation to the remarks made by the noble Lord, Lord True, there was a problem, and indeed there still is a problem, in the grouping of these amendments. As I read it, many of the noble Lord’s amendments tag on to provisions for the implementation of the mayoral system, with reference to a referendum having taken place on the basis of three possibilities. One is the decision of a local authority itself, but subject to a referendum. Another is a petition from the public generally, and the third, which is the problematic one for many of us, is the requirement to hold a referendum by the Secretary of State. As I understand it, the noble Lord’s amendments, along with those of his noble friends, assume for the purposes of their amendments that the compulsory referendum remains part of the Bill. Last night I endeavoured to turn the debate around the other way so that we could deal with that issue first. When we come to consider the Bill on Report, perhaps we might look at how to address the issue.
The implementation points are perfectly valid and apply to the two non-compulsory forms of acquiring an elected mayor, but while I know that the Committee will not divide on them today, if the amendments were to be accepted on Report, it would be assumed that the compulsory referendum had been agreed. Some of us, perhaps many of us, have different views about that. In today’s groupings there are amendments which address that issue of principle, and I hope that the noble Lord understands where some of us are coming from in that respect.
I thank the noble Lord. I have seen his Amendment 81B, and obviously that implies the direction he is coming from, but I certainly do not want to be unhelpful to the Committee in any way. My objective, which the Government have now said is theirs as well, is to erase the principle of shadow mayors. However, I agree that the point of principle he has raised does merit discussion at some point in our proceedings. I will be as co-operative as I can, under advice.
My Lords, unfortunately these amendments were grouped and degrouped rather speedily overnight, so we were slightly surprised to see this morning where the degroupings were. However, I accept the fact that the noble Lord will want to deal with the referendum issue at the next stage. Is there an amendment to which he wants to return? Otherwise I will accept all the amendments I have already said that I would accept, and I will go through them quietly again. The noble Lord indicates that he does not have an amendment to which he wants to return. That being the case, within the groupings of the noble Lord, Lord True, I shall list which amendments I am willing to accept, and if there are any differences about that, we shall look at the issue again. The amendments are Amendments 62A, 66A, 69A, 69B, 69C, 73A, 74A, 75A, 77A, 77B, 79A, 81A, 84A, 84B, 84C, 84D, 87A, 87B, 87C, 87D, 108A and 187. In listing them, I repeat the undertaking that I gave at the outset of Committee to remove the provisions for mayoral management arrangements.
I shall deal finally with Amendment 56, to which I suspect the noble Lord will want to return at some stage. The amendment would remove the provisions about whether an elected mayor is to be treated as a member or councillor of a local authority. I am told that these provisions replicate those in the Local Government Act 2000, which put in place the default position that a mayor is not to be treated as a member or councillor unless regulations provide that they should be. I do not know which side of the bed we are now on, or whether we are getting into it or out of it, as the noble Lord has said, but the default position is already in regulations.
I am just anxious that we should not have senior officers of the authority clambering into the bed. It might be easier to deal with it in the way that I have described, but perhaps that can be looked at. If regulations already exist and the intention is to replicate them, that might serve. On the other hand, it may be simpler just to revert to the principle of treating the mayor for all purposes as a councillor. But we can look at that before Report.
My Lords, I guess that I am grateful to some extent for the Minister’s explanation, but I am not sure that her telling me that the provision is taken from a previous Act, which I already knew, necessarily explains more fully the issues which the noble Lord, Lord Beecham, has referred to. I do not think that we will get very much further with this matter today, but we will need to look at it again.
We have a raft of amendments which the Government are supporting. They are in various different groups, which I think the Minister is struggling with—certainly, I am; I admit to that. I think that we are all struggling with it; we were all dealing with it in the middle of the night last night trying to understand it. When the Bill is eventually reprinted on Report, we will inevitably have to look at what is left in it and at what some of the consequences may be. We will undoubtedly return to it if necessary. In the mean time, I beg leave to withdraw Amendment 56.
Amendment 56 withdrawn.
57: Schedule 2, page 210, line 27, leave out from beginning to end of line 39 on page 212
My Lords, in the absence of my noble friend Lady Scott of Needham Market, perhaps I may give a very short introduction to this group of amendments. I say at once that my noble friend has been as good as her word and put her name to the main amendment in the group, Amendment 57. She will no longer press the case for mayors and chief executives to combine their role. With this having been virtually outlawed in public companies, and with the idea of an independent chairman and a chief executive being quite separate, having become very nearly standard in major quoted companies, it would seem very odd that local authorities should be moving in the other direction. I am delighted that the Government have seen that that is not a very sensible way to go. I have the same difficulty as my noble friend Lord Tope in trying to find out exactly where we have got to. In moving this amendment, I hope that my noble friend on the Front Bench will be able to make all things clear. I beg to move.
My Lords, my name, too, is on this amendment like that of my noble friend Lady Scott of Needham Market. Unfortunately my noble friend is unable to be here today—which I think she particularly regrets given the other names that have now been added to the amendment. I echo all that the noble Lord, Lord Jenkin, has said, and I am relieved to know that even with all his experience, he is possibly nearly as confused as I am about exactly where we are left with this, except that it is certainly in a much better place than it was a few days ago, which is welcome.
I understand now—in the proper spirit of localism, I suppose—that those mayors who are minded also to become chief executives, as I think is intended in Leicester, are at liberty to do so. I said at Second Reading that localism must mean the right to make the wrong decision. Therefore, I have to defend the right to make the wrong decision. There should be a clear difference between the role of an elected political leader and the role of a chief executive—I realise that we still have a head of paid service. A chief executive is usually, in theory, apolitical. There is a clear distinction and I regret the extent to which that is becoming blurred.
Once again I thank the Minister not only for her support for the amendment but for being willing and able to come out and say so at an early stage in the Bill. Like the noble Lord, Lord Jenkin, I look forward to a clear exposition of exactly where we are, and what is and is not in the Bill, as we go forward.
My Lords, I join this love fest with enthusiasm and congratulate not only the Minister on working this small miracle but other noble Lords—particularly the noble Lord, Lord Jenkin, whose long experience and stature have no doubt contributed to bringing about a change of mind on the part of Ministers generally—on achieving this very satisfactory result to what would otherwise have been a very unfortunate situation. I am happy to endorse everything that has been said by the noble Lord, Lord Tope, in thanking all those involved.
My Lords, perhaps I may take a minute of the House’s time and speak now to the two other amendments in the group on which I lead and which have the same welcome effect, as noble Lords on all sides have said. I, too, repeat my salute to my noble friend Lord Jenkin of Roding and the Minister. The separation of mayor and chief executive is a good idea and we should maintain it. I am grateful to my noble friend.
My Lords, I hope that we might be able to get back on track again without me having to swing round to make sure that I have done all the right things. We are happy to accept Amendment 57; I made clear my support for that previously in Committee. We recognise that there is great concern about the combination of the mayor and chief executive under the shadow arrangements and are content to support the amendment.
We are not quite so happy with Amendment 58 and I am going to reject it—I cannot see why, but I am. By the time we get round to the next stage I will have recovered my composure. I think that I was so taken by the noble Lord, Lord Tope, being so nice about me that I completely got underneath this. No doubt he will return to the issue at the next stage if he feels it necessary. In the mean time, I am not going to accept that amendment but have spoken to all the others.
My Lords, I am grateful to the Minister. I am not sure that I can accept her reasoning for rejecting Amendment 58, which is also in my name—not least because I have been nice to her and about her for at least 21 years; she should be very well used to it by now. That is not a reason for being unable to give the reasons for rejecting the amendment. However, as I am moving Amendment 57 in this group, I beg leave to withdraw that amendment. No, I am sorry. I am so unused to this. I beg to move.
I have already moved Amendment 57. I had originally hoped that my noble friend Lady Scott of Needham Market would be here to move the amendment. We have had an exchange of e-mails and I am sorry to see that she is not. In those circumstances, I moved the amendment. I repeat, this is not so much a love fest as a return of common sense, and we are all delighted with that.
Amendment 57 agreed.
Amendments 58 to 62 not moved.
62A: Schedule 2, page 215, leave out lines 4 to 45
Amendment 62A agreed.
Amendment 63 not moved.
64: Schedule 2, page 216, leave out line 27
My Lords, this group of amendments relates to still more regulatory powers conferred on the Secretary of State, this time in connection with the mayoral position, however derived, in respect of terms of office and the like. The schedule gives the Secretary of State power to regulate the term of office of an elected mayor. I am asking, through the amendment, whether “the term” is used in the sense of a four-year or five-year term, or whether it also gives the Secretary of State power to limit the number of terms. For example, under the police reform Bill, there is a limit to the number of terms that a police commissioner can serve—if that cataclysmic proposal should reach the statute book—to two terms of four years. There is nothing in the Bill to suggest that that is the Government’s intention this time, but it would be welcome if we could have an indication that it was not intended to limit the number of terms for an elected mayor. I say that having served what would have been four and a bit terms, had that term applied to the leadership of the council in Newcastle. But I declare no interest whatever in being elected mayor of Newcastle. I make that very clear.
Amendment 65 refers to the wide-ranging powers in regulations and would restrict those necessary for the purposes of this part of the Bill. Amendment 66 relates to a curious provision on elections and their administration. Under subsection (5) of new Section 9HN, the Secretary of State may make regulations,
“exercisable … on, and in accordance with, a recommendation of the Electoral Commission”,
with a curious exception which I do not really understand. Perhaps the noble Baroness can help me, if not today then subsequently, because it goes on to say,
“except where the Secretary of State considers that it is expedient to exercise that power in consequence of changes in the value of money”.
I do not understand to what that relates. It might relate to election expenses, but it is certainly not clear from the section what it relates to, and a little elucidation would be extremely welcome.
Amendment 67 seeks to ensure that the exercise of the Secretary of State’s powers to regulate in this whole issue of elected mayors and their elections is subject to approval by the Houses of Parliament. These are matters going to the heart of the exercise of local democracy, and they should be subject to affirmative resolution.
I think that the noble Lord, Lord Shipley, will speak to Amendment 86. One particularly odd matter is covered by Amendment 87ZA, which curiously has the Secretary of State involved in the appointment of mayoral assistants. I cannot think why that should be the case. I recall once in Newcastle, when we had a twinning relationship with a city in China, their mayoral delegation came over and the mayor addressed the council. He went up to the dais and one of his retinue came up with his spectacle case, opened it and handed the mayor his spectacles. That seemed an interesting position to hold, and I thought I would indent for a spectacle bearer to the leader of the council, but in the end refrained from doing so. Presumably the Secretary of State would now get involved in such an appointment. It cannot be right, can it, for the Secretary of State to be making regulations for the appointment of a mayoral assistant? Perhaps the Minister can explain. If she cannot do so today—and I would not at all blame her—perhaps she might write to me and others of your Lordships on that point. I beg to move.
I shall speak to Amendments 86 and 87 in this grouping. My noble friend Lord Shipley has unfortunately had to leave for an hour for another very important engagement, as things would have it at exactly the moment when his amendments come up, so I find myself once again in that position.
The amendments are fairly self-explanatory. They deal with the appointment by the elected mayor of a deputy mayor. Amendment 86 says that such an appointment should be subject to agreement by a majority of the executive. That is certainly desirable; the amendment would say that it was essential, and that would be quite proper given what the role of the deputy mayor could be.
Amendment 87 deals with a situation when there is a vacancy in the office of deputy mayor and the elected mayor has to appoint another person to be deputy mayor. There is no provision that that other person need be a member of the executive; therefore, it is even more important in those circumstances that the other person appointed by the deputy mayor should meet with the agreement of a majority of the executive. As the noble Lord, Lord Beecham said earlier in a slightly different context, any sensible mayor, like any sensible leader, would make sure that they did that. On the other hand, it is still a little easier to remove a leader if it is necessary than, quite rightly, to remove an elected mayor. Therefore, we feel that this provision should be in the Bill for the sake of good government.
My Lords, I support my noble friend Lord Beecham’s comments on Amendment 64. I am not a supporter of term limits. I think that it is up to parties and their candidates, and then it is for the voters to tell them who they want to elect. If the Minister can give us some clarification about term limits, that would be useful.
My Lords, I thank noble Lords for this little exchange. I will see what I can do. Amendment 64, as the noble Lord said, seeks to remove the power of the Secretary of State to make regulations changing the term of office of elected mayors. This is an important power that allows for transitional arrangements to be made following the first election of mayors. In October 2001, when a number of mayoral elections were held, the Secretary of State was able to vary the mayors’ terms of office so that the second elections were held in May, and in some local authority areas the mayor’s term was varied to enable the mayoral elections to be held at the same time as local government elections. We believe that it is important that this power, which has been available to the Government since 2000, is retained.
Amendment 65 is unnecessary as regulations made under new Section 9HN can relate only to the conduct of mayoral elections, and changes to electoral law or regulations cannot be made for any other purpose under this power.
The noble Lord has queried the provision at new Section 9HN(5). The Secretary of State is able to make regulations placing limitations on election expenses. However, in most cases he must do so only following a recommendation from the Electoral Commission. The only exception when a commission recommendation is not necessary is where the Secretary of State makes changes to any limits in line with inflation. That would mean an upgrading of the mayor’s election expenses owing to the fact that there had been inflation, which of course we do not have at the moment so it would not be necessary. The noble Lord asked what “money” relates to here. It means election expenses, which can be uprated by the Secretary of State. Again, this replicates provisions in the Local Government Act 2000.
Amendment 67 seeks to require regulations made by the Secretary of State under new Section 9ID on the election, terms of office and filling of vacancies of executive leaders to be subject to the affirmative procedure. We envisage that any regulations made under this section would be used for transitional purposes when a change in governance arrangements takes place. Furthermore, the Delegated Powers and Regulatory Reform Committee, having completed its review of the Bill, is satisfied with the level of parliamentary scrutiny of regulations made under new Section 9ID. We are therefore not convinced that the existing arrangements in the 2000 Act, whereby such provisions have been subject to the negative procedure, should be changed. That remains the situation.
On the question of deputy mayors, Amendments 86 and 87, tabled by the noble Lord, Lord Shipley, seek to require the mayor to gain the agreement of his or her cabinet when appointing their deputy mayor. The Government’s view is that the decision about who to appoint as their deputy mayor should be a decision for the mayor alone. It seems unnecessary for a directly elected mayor, accountable to the electorate of an entire local authority area, to have to seek the agreement of a cabinet, the members of which they themselves have appointed, to determine who the deputy mayor should be.
Amendment 87ZA seeks to remove an elected mayor’s ability, if he or she wishes, to appoint an assistant. Such assistants can currently fulfil a similar role to those carried out by political assistants to the main political groups on the council. Given the significant role that elected mayors play in their local communities—taking key strategic decisions, acting as ambassador for the area and facilitating effective partnerships are just part of what they do—then, in the same way as leaders are supported by political assistants, elected mayors will need an assistant to effectively carry out these roles. There are currently four independent and local authority mayors in England. As such, independent mayors are ineligible to have a political assistant who works only to the main political groups on the council. Amendment 87ZA may have the effect of leaving such mayors without any access to any political support or assistance.
However, we are not saying that an elected mayor must appoint an assistant. The appointment of a mayoral assistant is entirely optional and we would expect mayors to have regard to existing support structures within the council, both political and administrative, and its financial resources when reaching a decision on whether it is necessary to appoint an assistant. The Secretary of State has, of course, no involvement in a mayor’s appointment of an assistant.
I hope that these responses are helpful and will convince the House that these amendments are unnecessary and need not be pressed.
Amendment 64 withdrawn.
Amendments 65 and 66 not moved.
66A: Schedule 2, page 218, leave out lines 3 to 20
Amendment 66A agreed.
Amendments 67 to 69 not moved.
Amendments 69A to 69C
69A: Schedule 2, page 221, line 20, at end insert “, and giving effect to, referendum on”
69B: Schedule 2, page 221, line 28, at end insert “, and giving effect to, referendum on”
69C: Schedule 2, page 222, line 30, leave out “implement” and insert “require, and give effect to, referendum on”
Amendments 69A to 69C agreed.
70: Schedule 2, page 222, line 40, leave out “third day after the relevant elections” and insert “relevant day”
My Lords, I move the amendment in my name and that of my noble friend Lord Palmer of Childs Hill, and speak to Amendments 71 and 72.
The Bill will enable local authorities to return to a committee structure and, indeed, to be more free than they have been for some time to determine what governance structure they wish to have, and which best suits their particular circumstances. That is wholly to be welcomed. It is clear that the Government rightly believe that that should be a matter for the local authority in a local area rather than central government.
A number of local authorities are already working in anticipation to improve, in their eyes, their decision-making structure, particularly to enable all councillors to play a more effective part in decision making than many of us feel has been possible with the executive/scrutiny split. Indeed, I have for the past couple of months been chairing a working party for my own local authority, looking at exactly that. It proved rather more difficult than I had expected because most of my colleagues in my local authority do not remember the old committee system. They have grown up believing —rather mistakenly, in my view—that the executive/scrutiny split was the natural and normal way of doing things; whereas the old dinosaurs like me believe that there was once a rather better way that would leave them less frustrated than many of them are in their role on the local committees.
All of that is to be welcomed. On Monday evening, I will present these proposals to my council group in the hope that they will be acclaimed. However, I think that they will initially be met with some puzzlement: “Are we really there to make decisions?”. “Well, yes, there were another 44 of you elected who ought to have a part in the decision-making process, because that is what you were elected for”. Hopefully all of that will happen but, as things stand, I then have to break the news to them that, desirable though all this is, and much as though the Government are happy for all of this to happen, none of it can happen for another three years. The Bill says that none of this can be introduced until after the next elections. In the case of London boroughs, that is 2014. For those authorities that have only this year had whole-council elections it will be a further four years.
If the Government believe it is right for these things to happen, I can see no reason why, once an authority, through the proper process, has agreed what it wants to do, it should not implement that now. I hope that we shall have a sympathetic response from the Government. I shall not challenge the Minister to explain why she feels that in London—in her own authority perhaps—there needs to be a three-year gestation period, or in other areas a four-year period, while we all wait.
Some authorities, some quite well known to the Minister and some certainly known to me—it will possibly happen more so in my own authority—have de facto set up a committee system already. The committees meet and de facto make recommendations, but in fact the executive, as it is legally required to do, meets immediately afterwards for no more than five minutes simply to rubber-stamp decisions made by the committees. That must be a nonsense. At the moment, it is a necessary nonsense, as that is what the law requires, but for us to continue in that ridiculous state for another three or four years makes no sense at all.
I hope that the Minister will be able to accept our amendments—it would be an unusual victory for me to achieve—or at least be able to express sympathy with them and say that she will come back on Report with something to give effect to them. It is quite important that we get an indication that this will happen on Report, or that it will not happen, because many of us will be looking to implement the changes from the next annual council meeting in May. It so happens that my authority is well advanced with this but others may perhaps only just be starting to think about it or may not even yet have realised that they can think about the changes. I beg to move.
My Lords, we have sympathy with these amendments and look forward to the Minister's reply about why there should be this proposed three-year wait. The noble Lord, Lord Tope, talked with some affection about the committee structure. I was leader of Luton Borough Council at the time when we went from a committee structure to a leader and executive structure. My experience was that when you are in control, the leader and executive arrangement is particularly helpful. In 2003, we ended up with a hung council and, although we were the largest party, there was a Lib Dem-Conservative coalition which appointed Lib Dems to the executive. Being on the receiving end of that, we were somewhat less enthusiastic, but I still remain committed to it. I think that the best route is to have a leader and an executive.
One thing that was lost with the committee structure was the opportunity for new councillors, particularly younger councillors, to get involved with the cut and thrust of political debate because the structure and role of scrutiny committees are different. I think an opportunity to learn through that route and to have that debate was missed. We support the right for councils to choose and to revert to a committee structure, if that is what they want. On that basis, it seems that there is no great justification in waiting three years, but the Minister may be able to convince us. Subject to that, we support the amendments.
My Lords, speaking as yet another dinosaur who remembers the old system and who was a councillor and is still a councillor in the London Borough of Barnet, I think that the proposal to allow local authorities to choose whether they return to the committee system is very welcome. The only thing I disagree with, and my noble friend Lord Tope obviously disagrees with, is that one has to wait three years before a local authority can make that decision. I cannot see the logic of that.
I have had the benefit of being a cabinet member, as they are called, in a joint administration in the London Borough of Barnet and I am currently an opposition member in that borough. When I was a cabinet member, one of 10 people exercising full executive power in the London Borough of Barnet, I enjoyed the power wonderfully. I used to give little speeches saying that democracy was not being exercised as 10 people had executive power but 53 people in the ruling parties and in the opposition had no real role to play and roles were found for them rather than their playing a constructive part, as they did under the committee system. Therefore, I have experience of being in power and in opposition and I still believe that the committee system is the right one. Under the system we are discussing, back-bench members in the ruling parties and in the opposition feel that they do not have much of a role to play.
I have had many meetings with people from other local authorities and I have yet to find anyone who feels that overview and scrutiny committees are as beneficial to local councillors as the committee system which enabled them to be involved in making democratic decisions. The current system with executives encourages tribalism within councils. I relate just one anecdote in that regard. I was on a minor committee which had executive power over environmental decisions and I asked for an electronic traffic signal which told people that they could not go over 30 miles an hour. I was the only Liberal Democrat member on the committee, which also comprised Labour and Conservative members. Everybody save one person on the committee supported the request for an electronic traffic signal. However, the then Conservative administration had obviously instructed the chairman of that committee to turn down the request and move it up the chain to the cabinet level. The cabinet comprised 10 people running a borough with a revenue expenditure of £500 million per year. They turned down my request for an electronic traffic signal. That may be a bad example of how the executive system operates, but there are many such examples.
A committee system which enables the public to see what is happening and in which other people have a role is much sought after. All this amendment seeks to do is to allow local authorities to take the relevant decision when they want to rather than having to wait three years in the case of London, or possibly four years in other authorities, until the next local elections. I support the amendment.
My Lords, the noble Lord, Lord Tope, made some very welcome points. Many years ago I was a councillor in the London Borough of Southwark. I left the council in 1994, so I experienced only the traditional committee system. Many years later as a Labour Party official I attended Labour group meetings at which many members said that they were not so keen on the present system and would prefer to go back to the committee system. My noble friend Lord McKenzie made an important point about younger councillors getting fully involved in the council’s business. It is not so easy for them to play a scrutiny role. I hope that the Minister will explain why the three-year period is necessary and why the relevant matters cannot be dealt with more quickly.
My Lords, I do not want to prolong the philosophical discussion about which system is better but given the principles behind a Localism Bill, clearly the matter should be decided locally and as soon as possible. I am not speaking as a representative of London Councils, but the matter came up at a recent meeting of the leaders’ executive of London Councils and the leaders of all the parties unanimously agreed that they would like the Government to think again about this proposal. We hope that the amendment spoken to by my noble friends Lord Tope and Lord Palmer will gain favour in the Government’s eyes. I submit that what goes for London goes for authorities outside London as well.
My Lords, I support this sensible and well drafted amendment; my noble friend understands that joke. I want to make two points. First, if councils are to be able to choose the system of governance that they want, let it not be too bound by lots more regulation. Councils used to exist before 2000 and operated committee systems. They did not have lots of statutory guidance, regulations and orders telling them how to run them. They do not need that. Councils can perfectly well set up committees and run sensible committee systems without lots of new regulations.
Secondly, let us not imagine that there was a wonderful era of local representative democracy before 2000, when local authorities everywhere used the committee system, and that it suddenly all went bad when we had to have the executive/scrutiny split, the appointment of leaders, and so on. Life is not and was not like that. In the past, there were councils that operated efficiently, openly and transparently, involved residents and carried out their duties sensibly and efficiently; and there were councils that were pretty hopeless. That has remained the case, even though their systems have changed. Surprise, surprise—those councils that were not so good before 2000 have been not so good since. Of course, councillors can improve and some go the other way but, by and large, it is simply not true that everything was wonderful before 2000 and that everything has been awful since. Different systems may well suit different types and sizes of councils, and the dispositions of different councillors.
I hope that my council will adopt a new committee system and abandon the executive/scrutiny split, although I entirely agree with the noble Lord, Lord McKenzie, that when you are in control of the council, the executive system allows you to do all sorts of things fairly quickly, and you can just get on and do it. Looking back on the five or six years during which we controlled my council and I was involved on the executive, I have to say that I am not terribly proud of the way in which we made some of the decisions out of the public gaze. Of course, they were all rubber-stamped in a proper and legal manner but, in practice, the decisions were made by a small group of people consisting of top councillors and officials who decided what we wanted to do. It may be that that was always the case and that it will happen under a committee system, but the importance of a committee system, as a noble Lord said earlier, is that the scrutiny process can take place at the time that the decision is being made in the committee. This is one of the real reasons for committees and for not having single-party executives making all the decisions.
I am sorry that the noble Baroness, Lady Farrington, is not in her place. She and I were together on Lancashire County Council and we have discussed this in the past. I extolled the virtues of the committee system when it all changed to what I think is the appalling way in which that council now makes decisions, a large number of which are made by a single member of the executive—a cabinet member, portfolio member, or whatever they call themselves—sometimes meeting as a single-person committee, with all the officers and just one person in the middle making all the decisions. That is not the right way to do local government. The noble Baroness, Lady Farrington, would say, “Yes, but even under the committee system, when the Labour Party controlled the county council, the decision was made in the Labour group and very rarely changed”. I would say, “Yes, but occasionally it was changed, particularly when I stood up and pointed a few things out. You made a few changes”. The point is that the decisions were subject to debate and scrutiny in public at the time and at the moment they were being made. That does not happen under a lot of executive systems. The decisions we made on my council, when we were able to do so through the executive route, might have been better if we had had more people there challenging what we were saying and the workability of what we were doing, and persuading us to make some improvements. That is the advantage of the committee system.
However, I hope that people will not continue talking about “going back” to the committee system. We do not want to go back to the old committee system. We who hope that our councils will now move to a committee system want them to learn from the experience of the last 10 years and adopt some of the good things that have happened—scrutiny done well is very good. I know that many councils do not do scrutiny very well at all and that scrutiny committees are simply places to make back-bench councillors think that they actually have a job on the council, but scrutiny can be done very well indeed.
I am sorry that my noble friend Lady Hamwee is not here because she is an expert in scrutiny and would wax more lyrical about it than me. However, I hope that councils which are going to move forward to a new committee system—not an old dinosaur system—will keep the best parts of scrutiny because, done well, it has a role to play. What it does not do is the day-to-day, week-by-week scrutiny of decisions as they are taking place and that is why we want to go back to committees.
I say these things because this is the first time we have discussed the very welcome proposals by the Government to allow councils to make the choice, which some of us have argued for whenever it has come up in this House in the last 10 years. It is very welcome, the Government are to be congratulated, and I hope as many councils as feel it is sensible will go ahead with it.
My Lords, that was a short debate and I can probably give a reasonably short answer. We have some sympathy with the points that have been raised, particularly about the time that has to elapse before the changes can be implemented. I will not accept the amendment today but I am happy to take it away and consider whether those provisions are as good as they can be.
My Lords, I think I am grateful for that reply, which I think was an encouraging one. I spent 13 years as leader of a council under a committee system. I stood down on the day that we adopted the executive/scrutiny split—not for that reason, but it was a convenient time to do so—and spent the subsequent 12 years as a member of the executive, so I have experience of both.
I am sorry that I led us into a debate on what the best system is. It was probably inevitable that we would have a debate on what the best system is and what our personal experiences are, but the noble Lord, Lord True, was absolutely right to remind us that that is not our business to debate today. Having rightly left local authorities to determine for themselves what system they want, the only decision for us on these amendments today is the date on which that can be implemented. That is the sole purpose of my amendments, whether they are perfectly drafted—as I am sure they must be—or whether there is something more or different that needs to be done.
I hope very much that the Minister can be as clear as possible that when we come back on Report we will have amendments, moved in whoever’s name, that will make absolutely clear that there is no need and that it makes no sense for local authorities which have whole-council elections to wait three or four years before implementing the changes that we say they should have the right to do. In hopeful anticipation, I beg leave to withdraw the amendment.
Amendment 70 withdrawn.
Amendments 71 and 72 not moved.
73: Schedule 2, page 225, line 48, leave out “5” and insert “10”
My Lords, my noble friend Lord Shipley wished to move this amendment but, as I explained earlier, he has unfortunately, from my point of view, had to go to another engagement and will be there, I think, for another 15 minutes or so.
At a later stage of the Bill, we will probably spend a considerable amount of time discussing local referendums and the many issues that arise in connection with them. This is the first, and perhaps in some ways slightly premature, time that we come to this subject. Amendment 73 would raise the threshold for calling a referendum from 5 to 10 per cent of local government electors. We believe that 5 per cent is too low a figure. When we get to the later provisions, we will have a lot more to say about what the threshold should be and how we should get there, as well as other issues.
My noble friend Lord Shipley would have said that, if the need for a referendum is strong, there really should be more signatures to demonstrate that, and they should be easy to collect. I think we all recognise that the cost of a referendum, wherever it is conducted, is significant—it is not something that is simple to carry out. A whole range of matters has to be dealt with in conducting a referendum and, if it is to be done at significant cost, the need for it must be truly demonstrated. Public demand for it should be there, and 10 per cent—I would say at least 10 per cent—is a better figure because it balances the right to have a referendum, which is conferred under this legislation, with the need for it to be held and the implications of doing so. I beg to move.
My Lords, this is another example of possible misplacement in the groupings, for which I do not blame anyone. It is very difficult to get a perfectly rational system. In fact, I pay tribute to the officer of this House who works so hard, so long and so late in trying to make sense of my and other noble Lords’ belated efforts to table amendments. She does a wonderful job and I have every sympathy for her. At least she does not have to read my handwriting, which would make the task impossible and not just difficult.
In relation to the amendment moved by the noble Lord, Lord Tope, I certainly concur, as, I think, do these Benches, with the proposal for a higher threshold. However, I want to address the rest of the amendments in this group, which go to the critical question in relation to governance of whether there should be compulsory referendums at the diktat of the Secretary of State. The amendments that follow essentially relate to that.
The Minister has fortunately helped us by removing the conflation of the position of mayor and chief executive, and she has dealt with—perhaps liquidated—the position of shadow mayor. We are now left with this element of the compulsory referendum. In that respect, it is necessary to look at the whole question of the mayoral system—its provenance and development.
I was present at the meeting about 15 years ago when Tony Blair launched on an unsuspecting Labour Party, and an even more unsuspecting shadow Secretary of State in the person of Frank Dobson, the notion of an elected Mayor of London and, following that, the possibility of having elected mayors elsewhere. I took his motivation at face value. He thought—and others who have advocated this in the past have thought and currently think—that it would invigorate local democracy, improve turnout at local elections and enhance the accountability of local political leadership because the elected mayor would have a mandate from across the whole authority. That was the theory; let us look a little at the practice.
Bearing in mind that until now, and until the legislation changes, only 5 per cent of the electorate in any authority has been needed to requisition a referendum, there have been, I think, only 41 referendums, if one takes Leicester into account, in the 10 years in which this option has been open. One area has had second thoughts and has terminated its adoption of the system. Of the 40 referendums, 14 were in favour of an elected mayor and 26 against.
What is perhaps more significant is the turnout in the referendums and the turnout in the local elections. This, after all, was going to be the great advantage to local democracy of this new system. There have only been two referendum turnouts greater than 40 per cent and both of those took place on a general election day. Some referendums had turnouts of less than 20 per cent, 10 had between 20 and 30 percent, and 17 had between 30 and 40 per cent. The upper thirties is probably about average for a local election—by no means satisfactory, but self-evidently at least no worse, and in many cases better, than the turnout in these referendums. It is quite significant that the turnouts were also very low in the ensuing elections. Some of the referendum turnouts were abysmally low: Bedford had a turnout of 16 per cent; Lewisham had a turnout of 18 per cent; among the best were Hartlepool with 34 per cent and Torbay with 32 per cent. However, this does not give any grounds for saying that this is an enormously popular reform that people are rushing to adopt.
Nor has the turnout in elections been very much greater, even in London. The turnout in the first mayoral election in London was 37 per cent. In the second, there were two—how shall I put it?—charismatic or certainly very visible candidates, and an election that seemed to run for a year, such that every time I stepped out of a Tube station in London and saw an Evening Standard banner, it was always proclaiming something about Ken or Boris. It was impossible, even if one wished to, to escape the fact that there was a London mayoral election. However, even then, the point seems to have eluded 55 per cent of the London electorate. Again, there does not seem to be much evidence for the initial inspiration of this change: that it would improve—whether dramatically, modestly or even at all—the turnout in local elections or interest in local government.
The other arguments were about visibility and effectiveness. Many of the elected mayors have been capable people. In London, I can certainly cite three of them: Robin Wales in Newham; Steve Bullock in Lewisham, albeit with a referendum there of only 18 per cent and, I think, a mayoral election turnout of about the same, when he was first elected; and Jules Pipe in Hackney. All of them, incidentally, had been council leaders before they became elected mayors. However, what sort of alchemy is it that is necessary to transmute a council leader into a mayor? Or is it—and I hope the right reverend Prelate will not take exception to my analogy—some process of transubstantiation that transforms a less visible and accountable leader into an all-singing, all-dancing mayor with much enhanced visibility and effectiveness?
It was interesting that, in promoting the idea of elected mayors, the Labour Party saw fit to send a delegation to the Netherlands to see how this wonderful system was working. They slightly overlooked the fact that, in the Netherlands, mayors are in fact Crown appointees and not elected at all. Similarly, those who pointed to very successful continental mayors, such as the mayor of Barcelona, seem to overlook the fact that he was not personally directly elected—he was the leader of the largest group or faction in the Barcelona council. He was a very able—in fact a brilliant—local politician and extremely effective, but he but not directly elected. In our own politics, although I remember Tony Blair saying in a television broadcast, “The people of Britain elected me Prime Minister”, actually they did not. They certainly have not elected the present Prime Minister. That is not to disparage him; it is just a fact. Why should it be assumed that it is necessary to have that direct personal mandate to be a legitimate leader?
It is said that if authorities adopted the mayoral system, extra powers would be given and a certain amount has been given to mayors in that position. Yet the question arises that we discussed briefly at Second Reading and earlier in Committee: why should those powers be confined to the directly elected mayor, as opposed to the leader and executive model? There seems to be no particular rationale on that. One thinks of great local government figures of the past, from all parties: of Joseph Chamberlain in his initial, Liberal incarnation; of Neville Chamberlain, who was slightly dismissed by Lloyd George as a good mayor of Birmingham in a bad year but who nevertheless had a considerable local government reputation and, it is fair to say, did a lot for it as a Minister; or of Herbert Morrison, a great leader of local government; or, perhaps slightly more controversially, of one of my capable but slightly flawed predecessors as leader of Newcastle council, Dan Smith, who was nevertheless a hugely influential and creative figure, in the best sense, during his surprisingly brief period. People in all political parties have also been extremely effective. Why should it be assumed that council leaders are necessarily less visible, accountable or effective than elected mayors?
There are problems stemming from the system as it has been created, not simply because of the accretion of powers in a single pair of hands but because of the structure around that. It takes a two-thirds majority to overturn an elected mayor’s budget. Yet you can have a situation with an elected mayor from one party and a majority of the council from another. It has happened twice in the authority adjoining mine. It happened with a Labour mayor and a Tory council and it is now exactly the other way round, with a substantial Labour majority in North Tyneside and a Conservative mayor. That highly anomalous situation raises two questions. First, what is the other councillors’ role in that kind of situation? It has to be a substantially downgraded role from what we are used to and what is appropriate. Secondly, will there not come a day when people wonder, “What is the point of electing councillors at all, or of voting for a particular political party, if you are required to have at least two-thirds of the council to vote down a proposition from the mayor”? Most particularly, there is the most crucial decision of all: that about the budget. There are, it seems, real difficulties inherent in the system.
There is also a suspicion, certainly on this side of the Chamber—it may be in certain parts of the other side of the Chamber—about the current political motivation for this decision to take the power to require referendums to be held. I refer in particular to a speech made by the Member for Grantham and Stamford in another place, Nick Boles. He is, I suppose, a Tory intellectual. There are people unkind enough to think that term a bit of an oxymoron but I would not allege that in the case of Mr Boles, who is an extremely bright, intelligent and articulate man. Yet he said some time ago, apropos of this position about elected mayors, that it was the only way in which there would be a ladder back into power for the Conservative Party in places where its chances were pretty minimal. I think that he cited Manchester and other places where Conservative representation has been minimal, if not nil, for some time. I hope that is not the Government’s motivation and I would not for a moment imagine that the Minister would subscribe to that motivation, but others elsewhere might.
Going back to the original idea that Tony Blair had, the problem is that as a great charismatic figure—and whatever views one might have about him, he was the most effective politician, certainly in Labour Party terms, for generations and had a hugely charismatic style—he envisaged that there were around the country at least 430 charismatic town-hall Tonys able, willing and ready to step forward and operate in the same way. That assumption is not necessarily true or desirable.
Having said that, there may well be cases where the mayoral system actually offers a way out of a very difficult political situation. I referred to the mayor of Hackney as a very successful and capable mayor, and he was a very successful leader, but he inherited an extremely dysfunctional council in which there was little prospect for many years of getting anything done at all. One can well see that in those circumstances, a mayoral system might actually be the only way of carrying forward necessary change and getting a degree of consistency, clarity and political leadership.
We are in that sort of gridlock situation, and there seems to be a strong case for having the possibility of an elected mayor. There may be a genuine popular demand. Nobody is suggesting for a moment that there should not be the option of an elected mayor. It has been there for 10 years. It has been little used, but it is still there. For those who want it, there is every opportunity, at the moment requiring a 5 per cent threshold—perhaps they should be heading for the petitions now before the threshold is increased, if that is what happens as a result of the amendment moved by the noble Lord, Lord Tope—and they should certainly take advantage of it if they wish.
The question the Minister and the Government have to answer is: why should local authorities be compelled to have a referendum when the opportunity has existed for 10 years and there has been no petition? The point of these amendments is therefore to dispense with the element of compulsion and leave it to people to exercise the right they have, to political parties in those areas, if they wish to promote the cause, to call a referendum or, indeed, to councils, as Leicester has done recently and Tower Hamlets did a little while ago, to call a referendum under the existing provisions. Why should there be this element of compulsion?
It is just conceivable that the Government may not accept these amendments either here or on Report. There is that remote possibility, in which case noble Lords will notice that Amendment 81B, which was tabled very late, I am afraid, effectively preserves the current decision of the Government to proceed with an order in respect of the 11 authorities. There were originally 12, but Leicester anticipated the Government’s wishes, held a referendum and now has an elected mayor, as we have already heard in another context. We understand that this proposal for these—previously 12, now 11—referendums was part of the coalition agreement. We are not incapable of simple arithmetic, and it seems to us unlikely that we would have an accretion of strength from the Liberal Democrat Benches were an amendment pushed to the vote. I certainly will not be voting for a referendum in any debate in Newcastle. On the contrary, I will be part of a campaign that I think both the Labour group and the Liberal Democrat group in Newcastle will be waging—and I think it will be the same in many, if not all, of the other authorities—against having an elected mayor, should the legislation go through. We think it better to have a fallback position in case the Government perchance are not minded to accept the proposition that we should be abandoning the concept of compulsory referendums tout court, which we would very much like to see.
We will not divide in Committee, but we will do so on Report unless there is a change of policy. In our view, the Government have a long way to go to make the case for compelling referendums in the absence of any evidence of any desire for them either in authorities that have not yet had them, or indeed in those that have.
My Lords, my noble friend might be disappointed that I rise at this point, but I gave her notice that I might do so at some point.
The noble Lord, Lord Beecham, made a very interesting and thoughtful intervention which I hope everyone in the House will reflect on. It is absolutely beyond doubt that the coalition agreement, and indeed my own party’s manifesto, made very clear that it wishes the mayoral principle to be extended further, specifically in the cities listed in the noble Lord’s amendment, and he has acknowledged that. From my point of view, therefore, it is absolutely clear that we should support and accept that, as I believe it has, in the traditional sense, a mandate. However, our own party’s manifesto, and the coalition agreement as I read it, did not go beyond that into extending the general principle.
There is at least scope for some discussion on this subject. I have an open mind on it, and I am open to be persuaded by my noble friend and others in the House. In the context of a localism Bill, it is a very strange concept that a Secretary of State of whatever political hue can in effect lift the telephone and say, “You’re going to have a mayoral arrangement in your authority”, even if there has been no clear localist wish for one. If people want a mayor and there is scope for one, and if a campaign for a mayor gains ground, there may be circumstances in which the Secretary of State might be tempted to wish that he had such a power, but I hope that over the next few weeks, while assuring my noble friend of my absolute support for the principles set out in the coalition agreement and in the manifesto, she might be prepared to reflect on whether the best way to advance even what you think is a good idea is to take the power to impose it potentially on the unwilling.
In some way or another we might be able to explore, in the traditions of this House, some way in which the absolute exercise of such potential power could be limited. My noble friend will be relieved to hear that I cannot support the amendments in the name of the noble Lord, Lord Beecham, but I hope that we can have some constructive engagement on this point.
My Lords, I have one or two questions. First, what evidence do the Government or anyone else have that in these 11 cities, including Newcastle, Manchester, Leeds, Liverpool, Wakefield—the metropolitan district of Wakefield is technically a city, but is in fact a collection of towns, as I know well because I grew up there—Sheffield, Birmingham, Bristol, Coventry, Nottingham and Bradford—there is an overwhelming demand, or indeed any significant demand, in these places for an elected mayor? In the absence of such a demand, forcing a referendum on people that is likely to be rejected in the majority of these places—perhaps all but two or three places are likely to reject it, or perhaps they will all reject it—is an astonishing waste of money.
Secondly, can the Minister tell us how much it will cost to hold a referendum in each of these 11 places? Although I may have missed something, the only place I can recall where there was a significant campaign for an elected mayor was Liverpool. It was led by some high-profile people, some of whom were connected with broadcasting organisations. However, the campaign failed to get through the present system to requisition a referendum. It is clear that in each of these places it would be difficult to raise the 5 per cent of genuine signatures for a referendum. In those circumstances, it is extraordinary that in a Bill called “localism”, the Government are imposing from the centre their own version of how local democracy should work.
People might argue that an elected mayor is a more localist system than an elected council, council leader and so on. But it is difficult to see how they can argue that it is more localist. They might argue that it is more efficient, more effective or more exciting, or that more people will turn out to vote, although, as the noble Lord, Lord Beecham, said, that is not likely. I wonder whether the Minister can tell us the criteria that the Government have used to make them think that this provision of top-down centralised instructions to people on the ground on how to run their cities fits in with a Bill called “localism”.
Thirdly, what evidence have the Government got that, in those places which have already got elected mayors, taking them as a whole, the system of local government is better than it was previously? There are places where the system is working very well. I would point, as I would anyway, to Watford, which has a Liberal Democrat mayor and a Liberal Democrat council, which helps a lot because they work closely together. But I suspect that, without an elected mayor but with a Liberal Democrat majority, the Liberal Democrat elected councillors and, thus, mayor would work together and would be a good council anyway.
I am not arguing that Liberal Democrat councils are always better than other councils. We all know perfectly well that, while we all pretend that our councils are better in different ways than everyone else’s, it is not always the case. As I keep saying, there are good councils and bad councils, and most councils are somewhere in-between, which goes right across the parties. They may have different approaches to things but in terms of whether they are good, bad, efficient, inefficient or whatever, it goes across the spectrum.
There are councils run well by mayors. The noble Lord, Lord Beecham, mentioned some in London. There are also councils which may have elected mayors but do not run so well. Local politics and local administration in Stoke-on-Trent has been a basket case for some considerable time. Having an elected mayor made absolutely no difference. You could argue that it made it worse. Another example is Doncaster, another council which has not had a good reputation for being efficient, open, honest and all sorts of things over the years. It now has an elected English Democrat mayor. Does that make the administration in Doncaster any better? The Government do not think so because they keep putting people in Doncaster to sort it out and to run things.
There are places where the local political culture is conducive to being run efficiently, whichever party is running it. There are places where the local political culture is conducive to it being a shambles and very difficult for whoever is running it to sort out. There is no evidence whatever that those places with elected mayors are on average run any better or any worse than those without elected mayors. Surely, if the Government are going to impose things like this from the centre, it should be on the basis of the evidence. If it could be proved to me that imposing mayors on these 11 places would suddenly make them better run than they are, I would consider it, but I have to say that the big cities in England, taken as a whole, have been one of the success stories of local government and administration over the past 10 to 20 years. Not all of them by any means—I do not want to mention particular cities—but some have been outstandingly successful. That is under the present system, so why will having a mayor make a difference?
Unless we can be given some very clear evidence, this just seems to be policy developed on the whim of a few people at the top of and within the present Government. That is not a reason for supporting it. I accept that if something is in the coalition agreement, as a Liberal Democrat I start from the presumption that I will support it. Some things in the agreement are so important to the coalition, so crucial and critical, that even though I think they are completely bonkers, I will go through the right lobby in support of the Government. There have been certain constitutional issues recently where that has been the case. However, I do not believe that whether you have elected mayors in 11 places, or you have expensive referendums for elected mayors to decide whether to have them in London, are matters that are fundamental to the foundations of this coalition Government. So if the House of Lords booted it out or if it goes to a Division at any stage, I have to say to my own party and anyone else who wants to listen, I will find it very difficult indeed not to support the proposition.
My Lords, the speech of the noble Lord, Lord Beecham, is one that certainly deserves some study. It is clear that he has put a lot of thought into it and he spelt out the case very clearly. I have had a slightly chequered experience of the mayor in London, having been the Minister responsible for the legislation that abolished the GLC and leaving it, I have to say, in a pretty unsatisfactory arrangement afterwards. The previous Government picked it up and took through Parliament the Bill that established the Mayor of London. After Mr Livingstone’s election, we bumped into each other—where else?—in a television studio. I said to him, “Ken, I should congratulate you on a remarkable victory”. “Oh, Patrick”, he said, “you were responsible for it”. In a sense I was, since I had created the situation where the position of a mayor for Greater London was possible, particularly a mayor who in his earlier capacity as leader of the GLC I had had a considerable passage of arms with. He was therefore perfectly entitled to make that remark.
Having said that, the fact is that it has worked in London; it has been a very considerable success. I did not agree with most of the things that Mr Livingstone did as mayor, and I am much more supportive of his successor. But the fact is that Parliament set up a structure that works, and that is something of which London can be proud. Furthermore, it works alongside the far more ancient post of the lord mayor of London, which is a tribute to the wisdom of those who have held the two posts over the years. No one confuses the two, except perhaps some foreigners. But the fact is that no one in London is confused about the role of the Mayor of London and that of the lord mayor. Indeed, Londoners turn out in large numbers for the lord mayor’s procession because it is a tradition of which Londoners are very proud. The difficulty lies in pointing to examples of where it has worked elsewhere.
I have come to the conclusion that there is a temptation for us to imitate the continental pattern, where mayors of major cities have risen to considerable prominence—indeed, some of them have become Prime Ministers. On one occasion, I was a member of a consultative body with Raymond Barre, who made his great reputation as the mayor of Lyon. There are plenty of other examples: Mr Chirac was the mayor of Paris. I do not know whether Boris Johnson has any ambitions in that direction, but at the moment he is seeking to defend his seat in London as the mayor. However, we have not had that tradition. The noble Lord, Lord Beecham, mentioned Joseph Chamberlain and Neville Chamberlain. In earlier decades, being a mayor may have been seen as a pathway to the highest post in government but, on the whole, we have not followed the continental example.
I said at Second Reading that I supported the proposal to encourage the election of more mayors. I made it very clear that I was totally against the proposition for shadow mayors and my noble friend Lady Hanham has already conceded that provisions for that are being removed—she has been as good as her word and signed the amendments on it. Curiously enough, the other point on which I agree with the noble Lord, Lord Beecham, is that, despite our best endeavours and those of the excellent lady in the Government Whips Office who does the groupings, the groupings list is still not quite right, because my Amendment 82 is in this group, whereas it might well have been in the group following. It would be sensible for the moment just to discuss both groups together.
The Government have conceded that the proposals for shadow mayors have gone, but have proposed instead Amendment 81A, which my noble friends Lady Hanham and Lord Attlee have both signed. It leaves out the provisions for shadow mayors, but then goes on to insert:
“9N Referendum on change to mayor and cabinet executive … The Secretary of State may by order require a specified local authority to hold a referendum”.
I share some of the anxieties about that and cite only one example. It was a referendum not on a mayor but on an elected regional assembly in the north-east. It was where, apparently, the then Government thought they had the best chance of securing an elected regional assembly. In fact, despite their enormous efforts—virtually all the big guns from Westminster went to make the case in Newcastle and all around—they got, if I may put it crudely, a bloody nose. It was electorally for the then Government a disaster, and no further attempt has been made to establish by referendum an elected regional assembly. I do not want to put too fine a point on it, but the great majority of people do not have any allegiance to a region. They have county allegiances and they have a national allegiance, and they may have an allegiance to a town or a city, but a region is something which they do not relate to.
The other factor—I have to say that I have had family involvement here, which, to spare them embarrassment, I will not mention—is that the referendum’s having been imposed by the Government was a very good reason why the good people of the north-east said that they were not going to have anything to do with it. It was the imposition of a referendum which partially ensured its defeat. I am glad to see the Front Bench opposite nod on that.
That leads me to question, as did my noble friend Lord True, the wisdom of imposing referendums on a city for a mayor. I am not quite sure what is sought to be gained by this. I know that my noble friends have pointed to some of the very successful mayors—Barcelona is frequently mentioned—but I just question whether one can translate some of those continental examples to our big cities here in this country.
The city with which I had the most connection during my period of office as Environment Secretary was, of course, Liverpool. I inherited from my noble friends the rather unwelcome title of the Minister for Merseyside. It was the same election when the Militant tendency gained its supremacy in Liverpool and I had two extremely difficult years. My Prime Minister, the noble Baroness, Lady Thatcher, came up to see how I was getting on. She met some of the characters of Liverpool Council—and there was no meeting of minds. To my great relief she said, “Well, Patrick, I see what you are up against and we shall back you. But get on with it”. In the end, of course, it was a Labour leader who defeated the Militant tendency—it had to be. I had always said that only the Labour Party could do that; the Conservative Government could not. Liverpool is now becoming one of the most successful cities in the country. It has had a huge resurgence as the European City of Culture and a great deal else. I am not sure that it would have gained much by having a mayor—I do not know. When it was asked to, it did not elect a mayor, as has already been mentioned.
It has been an interesting discussion and I look forward to hearing what my noble friend has to say. I share the doubts about the wisdom of imposing a referendum on a city. The precedents are not encouraging —I have cited a couple of them—but my noble friend may well be able to persuade me. However, I sit down on a happier note: at least we are not going to have shadow mayors—and for that I am truly grateful.
My Lords, the amendment has excited a deal of interest. I wish to make it absolutely clear that we are not talking about imposing mayors on cities; we are talking about imposing a referendum. It is crucial that we do not get too exercised about the imposition of a certain form of government. We are saying that it is the coalition Government’s view that cities would benefit enormously from having a mayor; they would benefit democratically and from all the interests that a mayor brings and all the influence that a mayor can exert. The noble Lord, Lord Jenkin, who is obviously not totally behind us on this, has pointed to the success of the London Mayor. When we first saw that starting, I do not think any of us thought that it would be very effective. In fact, it has been under two separate Governments; it has raised the profile of London.
We are trying to give a similar profile to other cities or to give local people the opportunity to say whether they think that would be an appropriate form of government for their city. The only imposition will come from the requirement to hold a referendum, and that requirement will be introduced under this legislation.
We believe that the economic growth and prosperity of our larger cities is absolutely essential to the economic recovery of the country as a whole. If we do not have good economic situations in the cities, things will look very dismal. We believe that a mayor would promote extra economic growth.
The Institute of Governance and the Centre for Cities have highlighted in their recent joint report that cities are the heartbeat of the United Kingdom’s economy. I think we would all support that. Although they occupy less than 10 per cent of the United Kingdom’s land, they contribute 60 per cent to its economic output.
The Government believe that it is clear that mayors are right for every major city. We remain true to our localist credentials, and it is absolutely up to the citizens to decide whether their city will have an elected mayor or not. We think they should, and we will be doing our utmost to ensure that everyone has all the facts about how a mayor can benefit the city and do a good sales job for its businesses and the people who live and work there. But finally and ultimately, the decision will be theirs.
We are committed to this in the coalition agreement. I thought that the noble Lord, Lord Greaves, was going to go seriously off-message and he may indeed seriously be still off-message. I hope that the noble Lord, Lord Tope, is not off-message, or all the other people who have signed up to this amendment. This is part and parcel of the coalition agreement that we should give local people in the larger cities in England a direct say on whether they want their city to have an elected mayor.
I know that local people can already petition for such a referendum. They can do it under previous legislation, and their elected representatives can decide, as they did in Leicester, where they have gone ahead of the game. There the council decided that the city should have a mayor, with the first mayor being elected there in May. We are convinced that the issue is now of pressing importance for the cities and for the country as a whole, and that people in the major cities should have a simpler, more immediate means for addressing the question. In short, as soon as practicable, people in each of the largest cities should have an opportunity of deciding whether they want an elected mayor. Some see this as central government imposition and “anti-localist”. We disagree completely with that. It will be for the local people to decide.
We have listed the cities, but the noble Lord, Lord Beecham, tabled Amendment 81B, where he wants specifically to have the cities named in the Bill. We will not agree to this, as it would have the effect of making the Bill hybrid, which would be a terrible mistake. Apart from that, even if that was not the situation, it would provide uncertainty, and I think that the House feels that that should be avoided. Given that the House will be asked to approve any order under Section 9, which is the order-making power, and we will have an opportunity to debate the merits of each city holding a referendum, I do not believe that it is necessary to set that out in primary legislation. I will certainly resist Amendment 81B.
I will be resisting the other amendments, including that on raising the threshold from 5 per cent to 10 per cent. In the cities, 5 per cent would be a very substantial proportion, and we should not make the hurdle any higher than that. As it is cities that we are talking about, we would not want to change that percentage.
I am not going to address each amendment. I have given an indication of why we believe that the mayoral referendum proposal should first of all come to this House and, if agreed, should go on to the cities to be carried out as soon as possible so we can have a decision and get on with having elections in the next year or the next 18 months. I thank noble Lords for their contributions but regret to say that I will not be accepting any of the amendments. I ask the noble Lord who moved the amendment to withdraw it.
My Lords, I thank the Minister for her reply, which was almost precisely in the terms that I expected. I shall refer briefly to the interesting speech of the noble Lord, Lord Jenkin, who talked about the success of the mayoral system in London. Arguably, that is the case, but there were successful leaders of London before the mayoral system—Herbert Morrison has been cited but one could also cite Horace Cutler as a Conservative leader or indeed Ken Livingstone in his original incarnation.
I am not sure whether it was the noble Lord, Lord Jenkin, or the noble Lord, Lord Heseltine, that Ken Livingstone was referring to on one occasion when, on emerging from Marsham Street, as it then was, having had one of a series of meetings in the dark days of the 1980s when the GLC was at loggerheads with the Government, he was asked, “Why are you going to see him again?” and he replied, “I think he likes me for my body”. Whether it was the noble Lord, Lord Jenkin, or the noble Lord, Lord Heseltine, who said that, I am not entirely sure.
I recall seeing it on television at the time. At all events, the noble Lord refers to a continental pattern, but the continental pattern is actually very varied. He mentioned Barcelona but, as I pointed out, in Barcelona there is no direct election for mayor. There are direct elections or indirect elections in different places and, as I also indicated, there are places where the mayor or burgermeister is a Crown or state appointment. The proposition here is more American in its origins, rather like the unfortunate police commissioner proposal —and equally tainted, in the view of some of us.
The noble Lord, Lord Jenkin, also referred to Liverpool. I well remember those days, and I remember the noble Lord going out of his way to be helpful to a very difficult group of people who, having managed to persuade him to make some concessions, then went extremely triumphalist at his expense and indeed may have caused him to move on from his job, an ill reward for a Minister who was doing his level best to help a difficult situation, but not one that surprised those of us who knew those with whom he was dealing. I recall a Sunday Times “Life in the Day” when Mr Hatton was talking about his family and how his daughter was very keen on horses. The article ended by saying that she liked nothing better than “to have a little trot around”, which seemed to me entirely appropriate. The noble Lord was extremely patient and forbearing, and those of us who remember him at that time acquired then and have since retained great respect for him and his style of politics.
The noble Lord is being more than generous. I should point out that that most demanding of bodies, the 1922 Committee, had absolutely no doubt that I had been suborned by the leaders of Liverpool, and I had overwhelming support from that committee.
The noble Lord certainly deserved it.
The Minister talked about Amendment 81B as being out of place because it would provide uncertainty. On the contrary: the point of that amendment is to limit the operation of the imposed referendum—I accept entirely that an imposed referendum is what we are discussing, not an imposed mayoral system—to these 11 cases. If there is a technical problem with what is in effect a sunset clause dealing with that group of authorities, perhaps on Report we will have to recast it. I think that it is fair to say that it will be our intention to test the opinion of the House at that stage about whether it is right to press on with imposing referendums in the way that the Bill provides. We do not think that it is right to do so. The noble Lord, Lord Greaves, has raised a legitimate question about the cost, which will no doubt feature in any campaigns which have to take place.
One further point is something of a puzzle. The expression regarding the definition of these authorities was that they were the “11 largest cities”. Well, that is not the case. Assuming, for the moment, that some of them are in fact cities, there are others: the city of Sunderland has a larger population than Newcastle; Kirklees, a collection of Yorkshire towns, is also substantially larger than Newcastle; and there is Hull. I do not quite know the basis on which the 11 have been chosen. However, these are the lucky 11 that remain in the frame. We on this side of the House will do our best to see that the overall principle is rejected by the House and then, if not, that the mandatory exercise is confined to these 11 authorities.
I will address two issues. I said that we were rejecting Amendment 74A. Of course, we are not; we have already accepted it. We were asked for the estimated cost of the mayoral referendums. It is about £2.6 million, and the department will bear the cost.
My Lords, the noble Baroness has a rather more pleasant duty to attend to in a few minutes when she goes to, presumably, the town hall in Kensington and Chelsea. We wish her well, and an enjoyable evening. We look forward to resuming the debate next week with the new freeman of the Royal Borough of Kensington and Chelsea.
My Lords, I will be very quick; we would not want the Minister to be late. She is quite right: I am totally off message on this issue as far as the coalition agreement is concerned. I am not off message as far as the coalition is concerned. The Government should learn. They have had a huge car crash, as people say nowadays, with the AV referendum; I voted loyally for that on every occasion and now I wish I had not. This will be another, in the modern phrase, car crash.
Whatever has been in coalition agreements and manifestos, there are times when, politically, Governments have to consider what is likely to happen. In most if not all these places, it seems likely that the Liberal Democrats will be campaigning vigorously against having an elected mayor—alongside the Labour party in many cases, and, I suspect, the Conservative party in so far as it still exists in some of these places; it certainly exists in some of them.
I am grateful for the information on the cost. I did not quite catch who was going to bear it. Was it central government? Yes. Well, a waste of public money is a waste of public money, whoever pays for it. I wonder whether the Government can direct me to some serious evidential basis for the view that having elected mayors provides better local government than would otherwise have been the case. I have not seen that evidence. There is lots of political and other argument about it, but I have seen no serious evidential basis for that proposition. If the Government have it, I would be grateful if they would make it available.
My Lords, the Minister has warned me not to allow my noble friend Lord Greaves to let me stray off message. I have actually said nothing at all on the subject yet, and that might well be a message in itself. I am rather too mindful of the Minister’s immediate appointment elsewhere to take more time with this. I am struggling hard to resist the debate that has been held about the benefits of a London Mayor. Having been a member of the London Assembly for the entire reign of the first London Mayor, I can say that any strategic government for London has to be better than no strategic government for London. What none of us can know—so I will not bother to argue it—is whether another system of strategic government would have been as good, worse or better. At least, there could have been an alternative to an elected mayor, which has not been considered.
Perhaps my noble friend would pay attention to the point that having an elected mayor for Liverpool does not provide strategic government for Merseyside, and that having an elected mayor for Manchester does not provide strategic government for Greater Manchester, and that the same applies to Leeds and Bradford.
He refused and it was one of his wisest decisions, because the person who requested him to do so did not distinguish himself in the interests of the Liberal party within a few years of that. I refer to our then party leader. The noble Lord, Lord Beecham, is probably too young to remember such an occasion in the 1970s.
I must get back to the point. The amendment relates to the threshold, and I am grateful that, in the end, the Minister paid some attention to it, because no one else has done so throughout the entire debate. Therefore, I have very little to reply to, except to say that we shall be returning to the issue of thresholds for referendums and so on at a later stage. In the mean time, I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
73A: Schedule 2, page 226, line 1, at end insert “, and giving effect to, referendum on”
Amendment 73A agreed.
Amendment 74 not moved.
74A: Schedule 2, page 226, line 24, at end insert “, and giving effect to, referendum on”
Amendment 74A agreed.
Amendment 75 not moved.
75A: Schedule 2, page 226, line 46, at end insert “, and giving effect to, referendum on”
Amendment 75A agreed.
76: Schedule 2, page 227, line 5, leave out “, unless subsection (2) or (3) applies”
My Lords, as I spoke at length to the earlier amendment, I can deal with this extremely briefly. This amendment and Amendment 79, which are in my name and those of the noble Lords, Lord Best and Lord Hunt of Kings Heath, and the noble Baroness, Lady Scott, are intended to be paving amendments to the substantive amendment which we discussed in the previous group, Amendment 82. My noble friend may wish to refer to some of the amendments to which she has put her name in this group. I beg to move.
I just want to confirm that the effect of the amendment is to remove the possibility of an authority being required to hold a referendum again within 10 years once a first referendum has rejected the idea of a mayor. I understand that to be the position, but having worked quite long and late on these matters, I was not entirely sure that my mind was sufficiently clear to appreciate that point. The Minister seems to be confirming that situation, which is eminently satisfactory.
My Lords, we had a long discussion on the previous amendment, as the noble Lord, Lord Jenkin, says, and I think that that covered what has been raised here. I can confirm that Amendments 76 and 77 would prevent another referendum within 10 years. Therefore, I ask the noble Lord not to press Amendments 76, 77, 78 and 79. Government amendments have already been agreed to. I thank the noble Lord, Lord Beecham, for his very kind remarks. I am off now to become a free woman.
I send the Minister on her way with further congratulations on the changes that have withdrawn the offending passages about shadow mayors. The top three in the Local Government Association’s long list of hopeful amendments include removal of the references to the combination of elected mayor and chief executive and removal of the issues around shadow mayors. That just leaves in our top three the question of EU fines, which will come up later. However, two out of three so far is extremely satisfactory and we are extremely grateful to the Minister for that.
Amendment 76 withdrawn.
Amendment 77 not moved.
Amendments 77A and 77B
77A: Schedule 2, page 227, line 9, leave out “implement” and insert “require, and give effect to, referendum on”
77B: Schedule 2, page 227, line 11, leave out “to continue”
Amendments 77A and 77B agreed.
Amendments 78 and 79 not moved.
79A: Schedule 2, page 227, line 27, leave out “9NB(2)(c))” and insert “9N(2)(c))”
Amendment 79A agreed.
Amendments 80 and 81 not moved.
81A: Schedule 2, page 228, line 19, leave out from beginning to end of line 38 on page 229 and insert—
“9N Referendum on change to mayor and cabinet executive
The Secretary of State may by order require a specified local authority to hold a referendum on whether the authority should operate a mayor and cabinet executive.”
Amendment 81A agreed.
Amendments 82 to 84 not moved.
Amendments 84A to 84D
84A: Schedule 2, page 229, line 39, leave out “that” and insert “this”
84B: Schedule 2, page 230, line 9, leave out “section 9N” and insert “this section”
84C: Schedule 2, page 230, line 10, leave out “change” and insert “order”
84D: Schedule 2, page 230, line 14, leave out “to continue”
Amendments 84A to 84D agreed.
Amendment 84DA not moved.
84E: Schedule 2, page 232, leave out lines 18 and 19
Amendment 84E agreed.
Amendments 85 to 87ZH not moved.
Schedule 2, as amended, agreed.
Clause 12 agreed.
Schedule 3 : Minor and consequential amendments relating to local authority governance in England
Amendments 87A to 87D
87A: Schedule 3, page 240, leave out lines 9 to 41
87B: Schedule 3, page 248, line 20, leave out “9HH,”
87C: Schedule 3, page 249, line 20, leave out from beginning to end of line 6 on page 250
87D: Schedule 3, page 253, leave out lines 19 to 30
Amendments 87A to 87D agreed.
Schedule 3, as amended, agreed.
Clause 13 agreed.
Clause 14 : Prior indications of view of a matter not to amount to predetermination etc
88: Clause 14, page 20, line 30, leave out “(to any extent)”
My Lords, we have rightly just had a long debate about a major issue. In moving Amendment 88, I wish to speak also to Amendments 89, 90, 91, 92, 94, 95 and 96, with which it is grouped. Somebody who looked at them said to me that they were typical fiddly House of Lords amendments, by which I think they meant the kind of amendments that try to probe what is meant by the words set out in the Bill.
We are now on Chapter 4 of Part 1, which is about predetermination. Predetermination is a doctrine that I understand is well established in common law—that people making decisions in a public capacity have to keep an open mind and not close their minds and fetter their discretion before they make those decisions. That principle is vital in the law courts. Within local government that doctrine has really taken off in the past 10 or 15 years. I was a member of a local authority until 1998, when I decided to retire and find something else to do with my life. Until then, it was not something that people paid a great deal of attention to. In planning decisions, the area where the rules on predetermination have really taken hold, if there was a proposal for a new supermarket, councillors were free to campaign about it and election campaigns could involve people expressing their views. It did not stop councillors taking part in decisions.
When I went back to become a member of a local authority in 2004, the situation had substantially changed. I have been aware of that from discussions with people on local authorities since then. At that time, largely because of the decisions of the Local Government Ombudsman, particularly in planning applications, the concept of fettering one’s discretion had become a major factor. Councillors, particularly on planning committees, were warned that they must not express a view on an application before making a decision on it. On many authorities councillors were often told that they could not speak to objectors, residents or applicants—or, if they could, that they had to do so in an organised way in the presence of a planning officer. This whole doctrine has therefore taken over at least one major field of local government: planning.
Over the years many of us have taken the view that this has not only fettered people’s discretion on planning applications but prevented the proper operation of local democracy. We have had ridiculous situations whereby, in one rural town in the West Midlands, candidates from our party campaigned during an election against the one big issue in the town, a major town centre development, but when they were elected to the council they were told that they could not take part in discussions on it, otherwise they risked being hauled up before the standards regime or even being taken to court.
This provision is a welcome attempt by the Government to solve this problem and to put the weight back on the democratic side of the balance, at least as far as planning applications are concerned. That is not to say that people should not make the actual decisions in full knowledge of all the facts and having listened to all the arguments. They should be able to take a rational decision. However, it is ridiculous that on some of the most important proposals coming forward for decision in communities, councillors are prevented from expressing a view, and candidates at elections run the risk of finding that they cannot take part in those decisions if they had expressed a view during an election in which residents, not unreasonably, wanted to know what the candidates thought about the proposals and may well have voted on that basis.
The provision in the Bill is very welcome. However, the more that I read the details, the less I understand what some of it means. Because this whole area has been tied up in legal red tape, the wording has to be absolutely right. Amendment 88 probes why the words “to any extent” are in subsection (1)(b), and whether that weakens the provision. Either you have a closed mind or you do not have a closed mind. Of course, you might have a closed mind at 10 am, open it again at 11 am, and close it again at noon, but I do not understand what a “closed mind (to any extent)” actually means. It would be helpful to have some clear understanding of that.
I am not sure that I shall receive satisfactory answers on all these amendments. I may get wonderful answers this afternoon, but perhaps these are matters that require a clear explanation, perhaps in writing.
Amendment 89 asks what is meant by,
“or to have appeared to have had”
a closed mind. The question, as I understand it, is whether you had a closed mind. I do not understand why “appeared to have had” is relevant. Either a person had a closed mind or they did not have a closed mind on the facts of the case. I question what those words mean and why they are there.
I turn to Amendment 90. Clause 14(2) says:
“A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—
(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took”,
et cetera. I do not understand why it says “just”. It implies that other reasons or causes should be taken into account, and that therefore there may be circumstances where having a closed mind in combination with other factors may mean that predetermination still applies. It is fiddly legalistic wording but the word “just” seems a little out of place. It is an unusual word to find in legislation and it needs explaining.
Amendment 91 is rather easier. The wording says,
“the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took”.
My question is, does the word “done” encompass and include saying something? The amendment would put “done or said”. I am probing for clarity.
Amendment 92 questions subsection (3), which is curious. Subsection (3) says that subsection (2),
“applies in relation to a decision-maker only if that decision-maker—
(a) is a member … or (b) is a co-opted member of that authority”.
That is okay but it goes on to say that,
“‘co-opted member’ … means a person who is not a member of the authority but who—
(a) is a member of any committee or sub-committee of the authority”—
that is straightforward—or,
“(b) is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority, and who is entitled to vote on any question”.
That is fairly straightforward but it misses out people who are representing the authority on other bodies. Nowadays, with all the partnerships, joint committees, joint boards and everything else, a lot of what councils do is sending representatives to other authorities. If it is a councillor who is going, there is no problem; I assume that they are still covered by this legislation. However, if they are not a councillor—they may be a representative who is not a councillor or an officer of the council who is not a councillor—are they to be regarded as co-opted representatives and are they covered by this legislation? Should the legislation, in addition to what it says here, refer to representatives on joint boards, partnerships and indeed representatives in companies? Councils increasingly are forming joint companies of various sorts with other bodies, other councils; what is the position of people who are representatives in those companies?
Amendments 95 and 96 refer specifically to the functions of an officer. There is some curious wording that I am proposing to take out, for a probing purpose. It refers to,
“functions of an office of the authority … including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given”.
It is not clear whether these rules about predetermination apply to a council officer who is clearly representing the council in a joint committee or outside body, or whatever. It would be helpful to have some clarification on that.
The references here to officers are also interesting. It is absolutely clear that in the area of planning, for example, planning officers have negotiations and discussions with applicants in which they give a very clear view on what they think the position is. There will be a pre-application discussion with a planning officer or there will be one after the application has been put in, and the planning officer will say, “Well I am going to recommend that this is turned down or passed”, or he may say, “I have delegated power and, unless you change it in this way and that way, we are going to turn it down”. That is clearly predetermination. A decision is clearly being taken by an officer of the council and not a member, so how does that apply here? In future, will the regime be different for officers and members or is it the view that this chapter needs to apply only to members and people acting in a member-type capacity and that it does not have to apply to officers at all?
I have put these amendments forward in the hope that I will at least understand the position at the end. I take the very simplistic view that if I read legislation and cannot understand it, other people may be in the same position, and this is an area where we have to be absolutely clear. I beg to move.
My Lords, in rising to speak to this group of probing amendments, I want to ask the Minister one question. Anxiety has been expressed to me by the Gypsy and Traveller community that there is a risk that councillors could run campaigns and make decisions to remove unauthorised Gypsy and Traveller sites in an area, which of course is not in itself wrong, but they could do so without focusing on a long-term, sustainable solution to Gypsy and Traveller accommodation needs. Dale Farm springs to mind. Therefore, I should like to ask the Minister: if there is this risk, can he say what safeguards there will be against it?
My Lords, I rise to do something which my noble friend on the Front Bench will regard as unusual, if not unique. In the absence of an opportunity to speak on whether the clause should stand part, I state that, although I am interested in the answers to the ingenious questions that my noble friend Lord Greaves has asked, I am principally concerned to declare my undying support for this clause, as I understand it.
I have already indicated that my wife has been chairman of Braintree District Council, is currently the cabinet minister for planning and strategy—I think that that is the right description—is on the planning committee and, indeed, represents me on Braintree District Council. Indeed, I even voted for her. When my wife became a district councillor for the second time about eight years and a few months ago, I could not believe it when I discovered what these predetermination rules were. Any MP would have had a fit if he had been told that he could not indicate to his constituents that he shared their view on a matter that was likely to come before Parliament and would vote accordingly. I think that I have the purport of this right. Noble Lords are indicating that I have. Why should councillors not be able to say to their constituents that they agree with them on a matter and that they will vote accordingly when it comes before the council? I cannot see the slightest merit in that position. I do not think that it is democratic or defensible and, if, as I understand it, this clause gets rid of it, I am in favour of the clause.
I am made nervous by the intervention of the noble Lord because he knows much more about local government than I do, except in the indirect way that I have described. However, these are decisions of the local authority. I think I am right in saying that ultimately planning decisions could go to the whole council, although they are normally dealt with by the planning committee. Am I wrong on that? Some real issues arose towards the end of the speech of the noble Lord, Lord Greaves, concerning decisions delegated to officers by the planning committee.
However, I find it very odd. I know about the worries that underlie this sort of thing, but I make the point that planning decisions are often very, very important to local communities—I am thinking of things like supermarket applications and the like. It cannot be right that a councillor representing an area should not be allowed to express a view to his constituents that he then reflects in what he does on the council, or indeed the planning committee. If there is corruption involved, that is a different issue; but if it is a genuine view, formed on the basis of what constituents have put to him on the effects of that application on the neighbourhood, he should have the same right as a Member of Parliament in respect, for example, of an airport application, which is to express his views to his constituent and to reflect those views in his votes in the House.
My Lords, I rise to speak to our amendment in this group, Amendment 96ZA, which calls for a review and report on the operation of the section and is framed really as a probing amendment. I support the probing that has been undertaken by the noble Lord, Lord Greaves, because we are seeking to understand how much difference this provision will make to the status quo. I say to the noble Lord, Lord Newton, that his exposition of what he believes the current arrangement to be is not the full position, as I understand it. That is my understanding from a non-legal background, but I will try to come on to it and explain that point.
Views have been expressed to me that this clause provides a slippery slope that will potentially undermine the integrity of decision-making, especially on planning decisions, and will be a charter to allow bias. Others welcome the clause, as we have heard today, and consider that perhaps it does not go far enough, with some confusion around the term “closed mind”. In order to understand it, I have tried to set down a baseline to judge whether it has moved us on from the current position. Perhaps the Minister will take the opportunity to explain what this intended change will mean in practice.
As I understand it, the courts currently recognise two types of predetermination: actual predetermination and apparent predetermination—the latter is why the noble Lord, Lord Greaves, is pursuing the point about “to have appeared to have had”. Actual predetermination is where,
“a person has closed their mind to all considerations other than an already held view”.
That means that the exercise of a discretionary power where one or more of the decision-makers does not in fact exercise the discretion at all is unlawful as an abuse of that discretion. Apparent predetermination is where,
“the fair minded and well-informed observer, looking objectively at all the circumstances, considers that there is a real risk that one or more of the decision makers has refused even to consider a relevant argument or would refuse to consider a new argument”.
However, predetermination of course has to be distinguished from predisposition, where a councillor may hold a view for or against a particular development, say, but has an open mind as to the merits of an argument before making a final decision. There is a difference between predetermination and predisposition. The courts, as I understand it, have moved towards a more pragmatic approach in recent years. The Standards Board of England summarised the position in a rather helpful way—I think we will miss that body—so perhaps I can just read what it says are the practicalities of local government from the case law and what has happened to date. The Standards Board says:
“The courts have accepted that these practicalities mean that the fair minded and informed observer accepts that … Manifesto commitments and policy statements which are consistent with a preparedness to consider and weigh relevant factors when reaching the final decision, are examples of legitimate predisposition not predetermination … The fact that the member concerned has received relevant training and has agreed to be bound by a Code of Conduct is a consideration to which some weight can properly be attached when determining an issue of apparent predetermination … Previously expressed views on matters which arise for decision in the ordinary run of events are routine and councillors can be trusted, whatever their previously expressed views, to approach decision making with an open mind … To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process … Councillors are likely to have and are entitled to have, a disposition in favour of particular decisions. An open mind is not an empty mind but it is ajar”.
To reinforce that, perhaps I might read an extract from a judgment of Mr Justice Collins—a pragmatic judgment, so described—where he said:
“In principle, councillors must in making decisions consider all relevant matters and approach their task with no preconceptions. But they are entitled to have regard to and apply policies in which they believe, particularly if those policies have been part of their manifestos. The present regime believed that the development … was wrong and they had made it clear that that was their approach. In those circumstances, they were entitled to consider whether the development could lawfully be prevented. The fact that a particular policy is included in a manifesto does not mean that it must be implemented”.
I guess that there is some comfort for some in that.
To try and see where this is heading us, can the Minister say a little more about how this provision will work in practice? In particular if, as a matter of fact, an individual had a closed mind at the point of decision-making would that, as now, potentially invalidate the decision? If it is not possible, because of subsection (2)(a), to look to previous actions or utterances about the upcoming decision—that is, utterances and actions right up to the point of decision-making itself—what type of evidence would be needed to sustain a challenge of predetermination? Actions or opinions at the point of decision-making presumably do not help because that is, effectively, when everyone’s mind becomes closed on the decision.
Hitherto, issues of predetermination have not only been about decisions being lawful or unlawful. They have potentially engaged the code of conduct and the ombudsman, in that unlawful decision-making could give rise to maladministration and may give rise to personal and prejudicial interest. Authorities are to be encouraged under the Bill to adopt voluntary codes of conduct in future. What advice would the Minister give in the light of Clause 14? Does it effectively change anything?
What we are dealing with here is seen in other aspects of legislation—health and safety springs to mind—where people's perception of the legal position somehow drives unnecessarily restrictive and risk-averse behaviour. I remain genuinely unclear on how this clause has changed the status quo. We are entitled to have clarity on that point but if the import of this clause is to say that it no longer matters if you have a closed mind when you make these decisions, that is a quite significant change from where we are and one that should give us some cause for concern.
I am pleased that we have been able to have this interesting debate. As the noble Lord, Lord McKenzie, has said, both case law and the Standards Boards have moved on this issue, but there has been a considerable degree of anxiety about it in local government service areas, as my noble friend Lord Newton said. I think the Committee will agree that that has not been in the interests of local democracy. That is why Clause 14 forms such an important part of this Bill and why we are bringing it forward, so I welcome the opportunity provided by this debate. My noble friend Lord Greaves has produced, if I may say so, a typical set of House of Lords probes, and I accept totally what he is seeking to do. I think it is the wish of the Committee that I should go through the amendments that he has tabled and make it clear what the particular wording means and why we consider it important that these little nuances are brought in.
I say to the noble Baroness, Lady Whitaker, that nothing in this clause stops proper decision-making. Indeed, nothing in the provisions means that decisions are not going to be taken properly, having regard to all relevant considerations. On Gypsy and Traveller sites and the issues to which she referred specifically, I assure her that local authorities operate under fairly firm statutory guidance on provision for these matters. Any debate about this matter would have to be conducted in a proper fashion. In the end, councillors make decisions within that framework. We know that some people hold quite strong views on such issues. We accept that. In a democracy, we have to accept that people come with strong views. Whether they come with a closed mind is a different issue altogether.
I will come back to the comments made by the noble Lord, Lord McKenzie, but it might help if I first go through the amendments. Amendment 88 removes “(to any extent)”. We believe that by putting in “to any extent” we bring clarity to the issue. We are seeking to give councillors clarity that they should be fully entitled to the freedom to campaign on issues that are important to their local communities. There should be no suggestion in the drafting of this provision that there are degrees of having a closed mind that need to be taken into account when deciding whether this provision applies. That is why that phrase is in the clause. It is to make it absolutely clear that there is no degree of a closed mind that might be the subject of predetermination. If this amendment were accepted, the position on predetermination would be less clear for elected members and the public, which would defeat the whole purpose of this clause, which is to provide clarification on the current position.
Amendment 89 is an unnecessary drafting change. The phrase we are using here is taken from previous case law and provides clarity that a councillor is not to appear to have had a closed mind if they had previously campaigned on an issue. The fact that they may have campaigned on an issue does not necessarily mean that they are providing evidence that they appear to have a closed mind. This drafting seeks to provide clarity for councillors—we want them to be sure that they are doing the right thing, and we would all agree that councillors want to do the right thing—as well as judges and the courts. Indeed, the reason this is in the Bill is to provide some statutory law where so much has been dependent on case law.
On Amendment 90, the word “just” in this sentence indicates more clearly the function the provision is performing, which is excluding certain conditions from the judgment to be made about whether someone had a closed mind. Read literally, without the word “just” the sentence could mean that any decision-maker doing something that indicates the view that they will take is automatically considered not to have a closed mind, so the inclusion of the word “just” avoids the potential for this misinterpretation, which would lead to a result that we do not want. The word “just” therefore defines the matter more clearly.
Amendment 91 would narrow the range of councillors’ activities that we are seeking to ensure cannot lead to accusations of a councillor having a closed mind. Our current drafting makes it clear that if a decision-maker had previously “done anything” that indicated what view they took on an issue, they would not as a result be considered to have a closed mind. I reassure my noble friend that we fully intend the phrase “done anything” to include anything that a member may have said, written, or perhaps even held aloft on a placard. The amendment is therefore unnecessary.
On Amendments 92, 95 and 96, the legislation has been written to apply to elected, co-opted and other members of councils. There is no need for the provisions to be extended to paid officers in local councils. I assure my noble friend that separate rules are in place for dealing with officer bias in decision-making. This clause is not designed to address officer bias. The definition referred to in Amendments 95 and 96 of the type of decisions covered by these provisions does, however, need to include this reference to functions of an officer of the authority, because certain officer decisions are exercised by elected or co-opted members of the council for technical reasons; some of the functions carried out by elected mayors, the chairman of an authority, and leader of an executive are regarded as functions of officers of the authority.
On Amendment 94, we do not accept that this distinction should be made between the role of a co-opted member on a committee of the authority and the role of a co-opted member on a joint committee. Co-opted members of a committee of an authority would be free to express a view or campaign on an issue without being at risk of being unfairly accused of predetermination, but co-opted members of a joint committee would not. There are certainly instances in which co-opted members can sit on joint committees, and there is no reason to suppose that they will be any less capable of reaching a fair decision—something that lies at the heart of all of this—when sitting on a single-authority committee.
Amendment 96ZA makes a perfectly reasonable suggestion, but I refer noble Lords to our published impact assessment of these clauses. The impact assessment states that there will be a full policy-implementation review of the whole Localism Bill, including the policies on predetermination. That will provide all the information that I believe the noble Lord is looking for in this amendment, so I hope that when the time comes the noble Lord will not press his amendment.
The noble Lord, Lord McKenzie, asked whether, if as a matter of fact a councillor had a closed mind, the councillor could participate in a decision, what evidence would be used to determine that he had a closed mind and how this would be affected by the proposal in Clause 14. If a councillor is actually biased, he cannot participate in a decision; evidence of a closed mind could be that he has declared that he has a closed mind or that he refuses to listen to any new arguments. In reality, if a councillor says that he is not prepared to listen to any arguments and is self-evidently not prepared to do his duty by doing so, as we would all expect local government to do in a democracy, he would self-evidently be saying that he had a closed mind.
My Lords, I understand and take that point. But if you had someone who declared that they had a closed mind, is not the import of subsection (2) that, if they declared that at any point up to the time when the decision was made, it would be ignored? That is what the provision says. If that is right, how do you adduce the fact that someone has a closed mind? That is what I am struggling with. We accept that, if you have got a closed mind, you should not be involved and that decisions could be unlawful. If people have room to review the facts, that is fine. But my concern is what evidence you would now get. Prior to this, if someone had said, “I have got a closed mind” and there was surrounding evidence to that effect, it would be clear where we are. But under this proposal, you have to ignore what someone has done. What someone has done is what they have said, what they have written and the banners that they may hold aloft. How does the Minister square that issue?
My Lords, the situation, as I understand it, is that statements made prior to a decision being made in the period in which a campaign or a discussion is being held should be evidence that a councillor may have a strong opinion, but that does not necessarily prejudice the decision that they are going to make. But if they say at the time that they are making a decision that they have a closed mind, they should not participate in that decision. The practicalities of this are to put pressure on all councillors, however passionate they are about an issue, to consider their position before they vote as to whether they have genuinely considered alternatives that are presented to them. In which case, as long as they have done that, this clause means that in no way can they be considered to have had a closed mind if they have done that in all conscience. This is designed to provide a framework of behaviour in local government, which I am sure that the noble Lord would seek to encourage.
It is important that we get to the core of this. From what the noble Lord is saying, is it the case that if someone said every day of the week for two months leading up to the decision that they have a closed mind, that would be ignored under these provisions and that if they did not say, “I have a closed mind” on the day on which the decision is made, there is no difficulty?
It is fair to say that anyone who did not say that they were considering the matter with a fair consideration of the argument might well be in some difficulty. But what is disregarded by this clause is that evidence of the view that a person takes of a matter is not evidence of their state of mind when they are making that decision. It is important to understand that this is designed to enforce an openness of mind at the point of decision-making, which, after all, was always the purpose of predetermination.
The problem with predetermination was that it excluded people who had campaigned and, as my noble friend Lord Newton in his helpful contribution pointed out, the difficulty that a lot of local councillors had was knowing to what extent they could participate in the decision-making process if they had campaigned strongly on an issue. All this now does is say to a local councillor, “However hard you have campaigned on an issue, you should still make decisions without a closed mind or not participate in that decision”. But that is for the councillor himself to determine, rather than be determined by this clause.
My Lords, I am grateful to the Minister and I am sorry to have interrupted him on two or three occasions, but this is a very important issue. We accept the anxiety in local government about what councillors can and cannot do, and the importance, as the noble Lord, Lord Greaves, said, of the democratic component of this so that people are not precluded from campaigning on issues they feel strongly about. But that is the position at the moment, for as long as their minds are ajar.
Sometimes very cautious advice is given and therefore people tend to be more restricted than the law may otherwise allow, but notwithstanding all that—I think we have common cause in what we see as a proper outcome in this, so that if you have a closed mind or you are going to be involved in a decision, you should be able to judge the facts objectively and not predetermine the matter—I still see a difficulty in this provision. That is because I cannot see how you would ever get evidence of someone having a closed mind on the basis of this provision. It seems that you would have to ignore what they had said and done and campaigned around right up to the point when they make the decision. That seems to me to be an anomaly and I am still not sure where it leaves us.
My Lords, I am so encouraged and enthused by being described as helpful by my noble friend on the Front Bench—for the first time in a long time, perhaps even uniquely—that I feel the need to intervene again. I agree to some extent with what the noble Lord has just said, but my concern is that, in all honesty, I feel as though I have strayed into wonderland or into a bit of my philosophy course when I read PPE some 50 years ago. This distinction between predisposition and predetermination is like angels dancing on the head of a pin. As a councillor, you would have to be mad not to say, if you wanted to have any effect at all, that while you had had a view, you had looked at the new evidence and it had not changed your predisposition. That would not amount to predetermination. The whole thing is complete nonsense.
My concern is that it leads to a fracture in the relationship between councillors and their constituents. They have to fence with issues, pretending that they do not have a view, or telling their constituents that they do not have a view or dare not have a view because it might affect their ability to vote. That will not be understood by any ordinary person. Councillors are elected to represent people and in relation to their views. Indeed, in some circumstances they may want to express a view. This is daft, and MPs would not put up with it.
Let us take the example of Stansted, which I think has been the subject of votes in Parliament. The MP for Saffron Walden, my neighbouring constituency in the old days, was against it and would no doubt vote against it. In Braintree I was cautious because I was in favour of Stansted, but not all my constituents were, so I did keep my head down a bit. But if I had been against it, I would have been appalled if I could not have said so and then voted in Parliament. If my noble friend has a chance to say another word, can he say why things should be different for councillors from how they are for Members of Parliament? I can see no answer to that.
As I understand it, the impact of this clause will make it clear that individuals can campaign as you would want, but I hang on to the point that for as long as they leave open the possibility of a change of mind in due course, having examined the facts and merits of a case, they are not precluded from campaigning at the moment either. That is why I am seeking to probe just how much difference this clause makes.
I understand that, but reference was made to Mr Justice Andrew Collins, a great and good man. However, I would not want to be the judge who had to distinguish between predisposition and predetermination in circumstances where the person involved denied predetermination. You would have to be a mind reader, so it is not sensible.
I want to make just one contribution to this fascinating debate. The arguments alleging bias are few and far between and almost invariably fail, for the reason that the noble Lord, Lord Newton, gave; that is, it is almost impossible to get to the bottom of whether somebody is biased. The issue here, however, is that, in relation to a planning application, councillors are charged with giving full consideration to all material factors and the local plan, and reaching a decision in the light of the officer’s report that they have received. This is not to preclude councillors saying whatever they want and they can campaign until the cows come home on particular issues, but here we are talking about a particular councillor considering a planning application. Any councillor can go the planning committee, make representations and argue the merits of a case, but we are concerned here with a decision-maker who has said unequivocally that he is on all accounts against a proposal. It does not matter what he has heard; he will be voting against. In those circumstances, how can that person, sitting there and evaluating the application, be deemed to be fulfilling his duty to give due consideration to the application before him? The words rather indicate that, from now on, this will be a bias charter. Those who wish to campaign in that way will always then have a defence, saying, “You cannot indicate that any of the things that I said up to the moment of the application being considered is evidence of bias”. It will now make situations where bias was always difficult to prove almost impossible. Bias in relation to an application considered by councillors is not a proper course to take.
I recall at Second Reading the noble Lord, Lord Teverson, speaking very passionately about how one needs to respond to constituents. The assumption is that a councillor will always be on the side of his constituents, but that may not be the case. A councillor may decide that a particular project—let us say, an application for a bail hostel or something of that kind—is one that he, having heard the evidence, would want to support. It might be an incinerator or an abattoir, which may not play terribly well with his constituents. How would those constituents feel, as opposed to the commercial developer who might be the applicant—which is assumed normally to be the case—if they believed that their councillor had made up his mind in favour of something that they did not want without being open to persuasion and hearing their arguments and representations at the decision-making meeting? If one takes that point of view into account, one has the grave concerns which both my noble friends have advanced and which require detailed consideration by the time we get to Report. This is not a one-way street. We have to be very careful about how we might seek to change the balance within what is, as I implied in my earlier intervention, a quasi-judicial function. It is about only those that I think we are concerned.
The noble Lord has degrouped amendments which address that issue; perhaps we will come on to that matter later. The failure of an elected politician to fulfil the wishes of their constituents or to fail to respond properly to their wishes cannot be legislated for; the solution lies in the electoral process, at a subsequent general election. The illustration that the noble Lord used could not be covered by legislation in any way that he would have wished.
I believe that we have satisfactorily demonstrated that the purpose of this clause is to clarify the position of elected councillors to make it possible for them to campaign and engage fully with their local communities on issues which concern them without inadvertently—as has been the case in the past—excluding themselves from the decision-making process by doing so. That is why this is a great step forward and why it is in the Bill.
My Lords, as I said at the beginning, I should make it absolutely clear that I support what the Government are trying to do. The noble Lord, Lord Newton of Braintree, suggested that this was wonderland—and to some extent it is—but the debate has shown that there are a number of very important issues involved.
When I table fiddly, legalistic House of Lords-type amendments such as this, I always do so with a certain amount of fear that when I move them I shall be denounced around the Committee for wasting everybody’s time, but we have spent almost an hour debating this amendment. The debate has varied from a discussion of what the two particular words mean right through to the general principles. The noble Lord, Lord McKenzie of Luton, made a useful speech which took us through the general principles, the issues and the problems. The debate has shown that this provision perhaps needs a little more careful attention before we leave it in the Bill.
A noble Lord referred to the question of predetermination. One of the problems for local government is that this issue does not derive from any statute that I know about but from common law. It has developed over the past 15 years as a result of complaints and rulings from the Local Government Ombudsman, the Standards Board for England and some court cases.
We are talking about planning here more than anything else. When you are dealing with applicants who put in for planning permission—certain large supermarkets and so on—one of the problems is that it is very easy indeed for a council to end up in court. This can cost a great deal of money and councillors being hung out to dry. It is difficult and I hope that what the Government are trying to do will clarify the situation.
I do not want to see reams of regulations and statutory guidance on this but clear advice will have to be given to local councillors, particularly those on planning committees. That would be extremely useful. On councils such as mine, where the area committees are the planning committee for their area, every member of the council is a member of the planning committee. It affects everyone and they cannot hide behind what councils with very small planning committees do. They cannot say that certain councillors are insulated from the campaigning but everyone else can campaign; on my council, every councillor is a planning councillor on a planning committee and takes development control decisions every month.
There are ways of getting round it. I always say to developers, “Yes, I will meet you. I am not going to be hidebound and say that we do not generally agree to this. I am going to be careful what I say to you and you must be very clear that I shall look at all the issues. I represent people who are against what you are doing—indeed, I may represent you—but I shall listen to you. When the application comes to the committee I shall make a rational decision, but I cannot tell you now what that decision is going to be”.
It is more difficult when you are talking to angry constituents but there are ways and means of saying things. I could say, “Look, I cannot promise—I am not allowed to—that I will support you at the committee. I suggest that you come along to the committee, see what I do and then make your own mind up”. Even then sometimes I do not vote the way they want me to—but there we go. That is life. It has all happened in the last 15 years with regard to planning, but I do not believe that the planning system was hopeless before that all started, and this may get us back towards that. I ask the Government to issue clear advice and guidance to local councillors. It would be extremely helpful if somebody could produce a draft of that advice to councillors, based on what is in this legislation, before we get to Report. If the Government are able to do that, it will clarify a very great deal of the effect that the Government think it will have—not in all these legalistic worlds, but what ordinary councillors on the ground are going to be told they can and cannot do.
I offer that advice to the Government. Meanwhile, I said these were typical House of Lords amendments, and I thank my noble friend Lord Taylor for giving a typical House of Lords response to them, some of which I am satisfied with and some of which I did not quite understand on the spur of it. I will spend a typical House of Lords weekend reading Hansard to try to understand it. On that basis, I beg leave to withdraw the amendment.
Amendment 88 withdrawn.
Amendments 89 to 92 not moved.
93: Clause 14, page 20, line 41, at end insert—
“( ) This section does not apply to decisions made under a local authority’s licensing functions which relate to—
(a) the suitability of an individual to hold a personal licence, or(b) the personal and private circumstances of any individual.”
My Lords, this is a substantive issue, which affects licensing. There is an important point here that needs addressing. I have no idea what the Minister will say in response to this, but perhaps some thought needs putting into it. The noble Lord, Lord McKenzie of Luton, said there was a clear distinction between quasi-judicial decisions and general policy. There is always an argument as to how quasi-judicial planning is, but there are some licensing functions which nobody can possibly argue are not quasi-judicial—not least because it is not very long since they were actually dealt with in the magistrates’ courts. One of the Local Government Acts—I think it is the 2007 one, but I am not sure—transferred the function of granting permission and licences from the courts to the local authority.
In my experience, there are two main areas. There are licence applications for events and entertainments. If you want to run a cinema or theatre or you want a temporary licence for a big shindig in the park, or whatever it is, you have to apply to the local authority for a licence. There are alcohol licences, as well as licences for premises, pubs, clubs and retail premises—for new ones and for changes and extensions to existing ones. Then there are occasions when there might be objections from the police to an existing situation where the question of revocation or restriction of the licence is considered. All those things are matters of public policy. They are not huge, overriding policies and will never be in a manifesto, but the question of whether a particular premise is a suitable place to be a pub or club is general policy. The question of whether alcohol should be sold from particular retail premises is a matter of policy and ought to be treated as policy. The removal of predetermination restrictions should apply to that. But if you are dealing with the question of whether a particular individual is a suitable, fit and proper person to hold an alcohol licence in any of those circumstances, that is not policy. Under those circumstances, judicial rules really have to apply, and you cannot possibly have people going round saying, “That man is a rogue”, or, “That man did my sister down”, or whatever it is, “and therefore I am going to vote against him having a licence”. Members of the licensing committee have to be trained, they have to carry out proper procedures, the whole thing has to be done by due process and it is a matter of whether an individual is a fit and proper person.
The other area is taxi licences for operators, drivers and so on. Again, these are matters that refer to a particular individual and to whether that person is an appropriate person to drive a taxi and carry a member of the public around, or whether they are an appropriate person to run a taxi business. The question of whether premises are suitable to be taxi offices is probably a planning decision rather than a licensing decision. That is public policy, in my view, and it is entirely reasonable that you should be able to go around an area meeting people who are concerned, or even campaigning, about it. The question about whether Joe Bloggs or whoever is a suitable person to run a taxi business or to drive a taxi is like the situation with alcohol licences: they are not questions that councillors should go around debating in public, or in private before the meetings. They are there as if they are magistrates, considering on the facts and the evidence, usually on the advice of the police, whether or not these people are suitable. There is a specific case there where the predetermination rules should be applied, and strictly. The purpose of moving this amendment is to probe the Government’s thinking on this issue. I beg to move.
My Lords, I will be brief. I am not unsympathetic to the noble Lord’s amendment but I am not sure that I agree with the basis on which he proposes it. I think that he is distinguishing some circumstances where predetermination can be dispensed with from others where it should not. Without reopening the arguments that we have just been through, I do not believe that that is the import of Clause 14. In a sense, we are still awaiting the definitive government view on that. The issues around predetermination ought to run throughout the decision-making process. It is not quasi-judicial planning issues; there are lots of other decisions that councillors may make. As I understand it, if they have discretion on decisions, it must be real discretion. If they have pre-empted it by predetermination, there is the prospect that that decision will be unlawful, whatever area of decision-making is involved. However, I would not particularly disagree with taking those licensing operations outside the provisions of Clause 14.
My Lords, I thank the noble Lord, Lord McKenzie of Luton, for temporarily forgetting that he is on the opposition Benches and not the government Benches and, in effect, making the case that the Government will be making to my noble friend Lord Greaves. On this issue, I am afraid that I beg to differ with my noble friend.
I apologise to the noble Lord, Lord Beecham; I imputed this set of amendments to him and not to my noble friend when we were discussing the previous grouping. It probably rather shook him to discover that he was the author of a set of amendments that he had not actually been involved with.
On Amendment 93, it might help to clarify just how radical the change is. I hope to provide some reassurance with what I am going to say. The Government’s view is that an elected member is equally able to listen to arguments and evidence and come to a fair decision on what my noble friend has referred to as a personal licensing matter as he is on any other licensing matter. That means that there is no justification for leaving unclear the circumstances that mean that a councillor has to withdraw from participating in any licensing decision process. That lack of clarity arises from the fact that we as a Government do not accept the distinction being drawn here between what a councillor can say about a decision relating to a personal licence and what they can say about a decision on any other licensing matter. We strongly believe—this is at the heart of our policy on predetermination—that councillors should no longer be restricted in which of their opinions they are free to express to the communities that they are elected to represent. Councillors, like any other individuals, will have regard to laws on libel and data protection when discussing individual circumstances or information which they may hold. However, it would be wrong to restrict them in this way from commenting on what may be a matter of great interest to their constituents.
I ask my noble friend to withdraw the amendment. I am afraid that the Government are not prepared to see these as exceptional circumstances from the general principle of predetermination and the freedom of councillors to express their view prior to making a decision.
My Lords, I had hoped that the Government might take a rather different view on this. Having listened carefully to what the Minister has said, I am now even more convinced that I am right and they are wrong. The Minister referred to libel and data protection. I am not sure that either has much to do with it. Data protection would come into it with personal details being divulged to whichever licensing committee it was, which are private and should not be made public. If councillors made them public, they would be liable for it.
However, that is not at all the point that I am making. For example, there could be two rival taxi businesses in a community. The taxi business is fairly cut-throat. People do not make a great deal of profit and work very long hours. There are attempts to do the other side down, perhaps in a legal way. One faction is larger than the other and gets to the councillor who happens to be on the licensing committee. They say, “We do not want you to give a taxi operating licence to this person or taxi driver licences to these people, because they will be able to expand their operation and compete with us. We will find it more difficult”. These are personal applications. It would be outrageous if that councillor went around saying, “Yes, I will block the personal applications for taxi driving or operating licences from this or that person”, before the meeting. Councillors should be banned from saying things like that. Any councillor who goes around making such promises should be banned from taking part in the decision.
These decisions, particularly the alcohol decision, were until recently made in magistrates’ courts. Can you imagine a magistrate being in that position: going around and promising a community that they will block a particular person from taking over a pub and being the licensee because that community wants somebody from that community who it favours? Imagine the pub is in the middle of a big estate, and the estate has somebody who they would like to take over the pub, but the owners have an alternative in mind. To go around campaigning against that person getting a licence to run that pub would be absolutely disgraceful. It should be banned by law.
The more I listen to the Minister, the more I am absolutely convinced that I have raised a genuine problem. I disagreed with the noble Lord, Lord McKenzie of Luton. He was saying that he wanted everybody to be treated the same, but he wanted it to be more restrictive for everybody. The Bill says that predetermination —I keep wanting to say “predestination”, but that is not quite it—should be abolished for everybody. I am not suggesting that the noble Lord, Lord McKenzie, is saying that, but it is what the Government are effectively saying.
I do not think that that is what the Bill is saying. If predetermination equals a closed mind—I was trying to get an answer from the Minister earlier—and if predetermination as a concept is abolished, then there are very serious issues, particularly on planning and licensing arrangements, on which the noble Lord touched. That is the point I make about predetermination.
Yes, I accept that. I accept that there is a difference. It seems to me that there is a difference between the Government’s rhetoric and what they are saying will happen: that councillors will be freed from the kind of constraints that the wife of the noble Lord, Lord Newton, found, and which I found when I got back on the council. I think that relates to the probing that the noble Lord has usefully undertaken in the past hour or so, but there is no doubt that the regime will be more liberal than at present. We are probing what it will be exactly. The noble Lord said that it will be very radical and that perhaps we were not appreciating how radical it will be.
In general, I am fairly happy with that. However, I am not happy, and I suggest noble Lords should not be happy, about how it applies to applications for personal licences by individuals where they may be seen as controversial in the community. There may be other incidences as well. Let us look at an alternative. In a fairly built-up area, there are two corner shops which do not have alcohol licences but one of them applies for such a licence and the other one objects. The shop owner who objects could have lots of friends in the community who will instigate a petition, saying that the other shop owner should not have a licence. The motivation will be competition, not that the shop owner has spent the past five years in jail or is a fraudster or is generally unsuitable; it is simply competitive rivalry. As a result, the friends persuade a councillor with whom they have close connections, and who happens to be on the licensing committee, to oppose the licence. They hold a public meeting and present a petition. Surely that should not be allowed and yet, as I understand it, that kind of thing would be allowed under the new regime that the Government propose.
There is an important and serious issue here. I ask the Government to take the matter more seriously and to take more legal advice on it. On that basis, I beg leave to withdraw the amendment.
Amendment 93 withdrawn.
Amendments 94 to 96 not moved.
Clause 14 agreed.
Amendment 96ZA not moved.
Clause 15 agreed.
Schedule 4 : Conduct of local government members
96A: Schedule 4, page 256, line 11, leave out paragraphs 11 to 14
My Lords, this is the first in a series of amendments on the position of standards committees. A small number of us might like to have seen the Standards Board preserved, but clearly that will not happen. The focus of this amendment and subsequent amendments, which will be moved by other noble Lords, is on the preservation of standards committees in councils. This amendment deals with the position on page 256 of the Bill of authorities which currently have such committees and it would amend the previous legislation to omit most, if not all, of those listed. It is probably an accident of grouping that it appears here rather than with Amendment 97, to which I have added my name and which the noble Lord, Lord Tope, will move. I assume that the noble Baroness will not be here. I apologise to your Lordships for the fact that if we go more than a few minutes past seven o’clock, I will not be here either because I need to get back to my home in the north tonight. In case that eventuality arises, I add my strong support to the requirement for standards committees to be preserved. We need a mechanism in councils that is independently chaired—other amendments go into the detail of how such a procedure might work—to retain the confidence of the public in the standards to be observed by those who represent them locally. I hope that it will not be the same as the standards regime in another place but experience suggests that there is a need for a properly constructed scheme under which complaints can be ventilated and dealt with speedily, locally and impartially to sustain confidence in local democracy. To that end I move this amendment and indicate my support for the subsequent amendments.
I hope that my noble friend will comment on a concern brought to me by a constituent when I was the Member of Parliament for North Swindon, which powerfully illustrates the case that he is making for the amendment.
A couple of years ago the constituent came to me with his concerns about the Wyvern theatre in Swindon, which is owned by Swindon borough council but the management of which is contracted to a private company. My constituent had learnt that the business of the lead member in the Swindon borough council cabinet with primary responsibility for letting this management contract had been given thousands of pounds worth of business—from memory, it had been given £10,000 to £12,000 worth of business—by the theatre. It was clear that the councillor concerned had acted properly in leaving the room whenever this contract was discussed. However, that did not satisfy my constituent who made the point to me over and over again that if a Minister had been in an analogous position there would have been a scandal and the Minister would have had to resign. He kept saying to me that even if the councillor had done nothing wrong himself, the private management company might still be trying spontaneously to curry favour with that councillor as his decisions could be of enormous importance to its commercial well-being.
I told my constituent that in my view there was nothing necessarily wrong with a councillor getting business in this way. Councillors are not paid a salary in the same way as Members of Parliament are, for example, and most councillors need to earn a living. I told my constituent that the way to deal with the matter was to find out whether a proper procurement process had been followed, whether the contract had been put out to tender, if it had not been, why not, and if it had been, how many people had responded to the tender, what prices had been offered and whether the contract had been awarded on price, quality or for some other reason—in other words, whether it was all transparent. My constituent pursued this route and I did so on his behalf. We went to the council, which could not do anything. We went to the private company which was not covered by the freedom of information legislation and refused to give any information, so the situation was completely opaque and remains so to this day.
I hope the Minister will agree that such a lack of transparency on such a potentially sensitive issue is not acceptable and that this amendment may provide a way to tackle the opaque nature of such a transaction. I am sure that this situation is not unique to Swindon. If the amendment is not acceptable, perhaps the Minister can come up with some other proposal. I hope my noble friend will agree that his amendment would help to deal with this sort of issue.