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Cities and Local Government Devolution Bill [HL]

Volume 762: debated on Wednesday 24 June 2015

Committee (2nd Day) (Continued)

Amendment 36D

Moved by

36D: After Clause 6, insert the following new Clause—

“Transfer of functions: health and social care

A local or combined authority which is the recipient of any transfer of functions under this Act in relation to health and social care must abide by the following principles—(a) they must remain part of the National Health Service and social care system;(b) they must uphold the standards set out in national guidance;(c) they must continue to meet statutory requirements and duties including those contained in the NHS Constitution and Mandate; and(d) they must uphold the standards that underpin the delivery of social care and public health services.”

My Lords, in moving Amendment 36D, I shall also speak to Amendment 36E. Both amendments are in the names of my noble friends Lord McKenzie and Lord Beecham. This is the first opportunity to debate health and social care, but it may not be the last. I declare an interest as a resident of Greater Manchester, former city councillor in Manchester and former MP for the city. My interest in devolution to Greater Manchester is particularly strong.

These are essentially probing amendments regarding the devolution of health and social care to the combined authority—initially to Greater Manchester. I say “combined authority” because it is my understanding that health and social care is not a responsibility to be exercised by the elected mayor. In fact, the memorandum by the DCLG and the Home Office specifically rules out the integration of health and social care as a mayoral function. I would be grateful if the Minister would confirm that there is no intention in future to make that a mayoral function.

The devolution of health and social care in Greater Manchester has arguably provoked the most interest among the public, stakeholders, politicians and, of course, healthcare professionals amongst others. From a position of, in principle, supporting devolution, I believe it is important to clarify some of the points about the way that this proposal will unfold over the coming weeks and months.

The legislation we are debating makes not a single reference to health and social care. That is reinforced by the fact that in the Explanatory Notes, under “Legal background”, no reference is made to any health legislation, particularly the Health and Social Care Act 2012. We know that the original Greater Manchester devolution agreement did not cover health and social care and that a very belated memorandum of understanding was agreed between the Government and the Greater Manchester Combined Authority to set in train the process of devolution of health and social care. Therefore, probing amendments have been tabled under Clause 6, “Other public authority functions”, to elicit further information in this area.

First, we seek clarification: does the Bill apply in any way to public authorities other than district, unitary and county councils? Specifically, do any NHS organisations—clinical commissioning groups, NHS trusts, foundation trusts or arm’s-length bodies, to name but a few—fall within the powers that Clause 6 gives to the Secretary of State for Communities and Local Government to transfer functions and property or rights to a combined authority? I anticipate that the answer to this is no, but that means that the Bill has no bearing on the health devolution proposals and its provisions cannot be used to enact health devolution. As I noted earlier, the Explanatory Notes do not include the Health and Social Care Act 2012, which also suggests that it has no competence in this area. I would therefore be grateful if the Minister could confirm the Government’s interpretation is the same as mine.

Secondly, having read the health devolution memorandum of understanding, I suggest that implementing many of its provisions may require, sooner or later, primary or secondary legislation. This could be desirable, not only to set out clearly the statutory basis on which responsibilities may move between existing bodies—for example, CCGs, local authorities, foundation trusts and so on—but also to frame accountability relationships. Where such arrangements are currently set out in the Health and Social Care Act 2012, it would seem that amendments to that Act, whether made using the powers of this Bill or made directly through further legislation, would be required. For example, if the Greater Manchester Strategic Health and Social Care Partnership Board required statutory powers—and many commentators are of the view that, for such bodies to really shape the services locally, they will require such powers, and this view has often been argued in relationship to health and well-being boards being the strategic body at a local level without any statutory powers—clearly, amendments to primary legislation will be required. I would be grateful if the Minister would confirm the position. We do not want to leave NHS organisations and their boards, which implement policies, open to legal challenge that they are acting outside or in conflict with legislation.

Further on the subject of strategic boards, would the Minister support the view that its membership should include representatives of the criminal justice system, such as police, probation and voluntary organisations, which have a key role in shaping the health needs of local communities?

On a related matter, would the Minister also confirm that the commissioning of specialist services will remain the ultimate responsibility of the national Commissioning Board of the National Health Service? For example, again with reference to Greater Manchester, specialist cancer services delivered at hospitals such as the world-renowned Christie Hospital receive patients regionally, nationally and internationally. So they are not limited to people in Greater Manchester. We must avoid fragmentation and incoherence between Greater Manchester and the rest of the country in respect of specialist services. A view from the Minister on that important point would be welcome.

Further and crucially, without any changes to primary legislation, would the Minister confirm that the Secretary of State for Health still remains ultimately responsible to the public and Parliament for the health and social care services across Greater Manchester, or any other area that follows the path that Greater Manchester is taking on health and social care?

It would be remiss in this short debate on these probing amendments, particularly Amendment 36D, which exactly repeats the wording of the memorandum of understanding, not to mention funding. Paragraph 11.4 of the MoU, headed “Resources”, states that,

“it is recognised that the identified key workstreams will also require additional funding to support the transformation process. A programme and resourcing plan will be agreed with all parties by 13th March 2015”.

Has that plan been completed and, if so, how much additional funding has been made available to Greater Manchester either through the Better Care Fund, pump-priming money as suggested in the NHS five-year forward plan or, crucially, additional resources directed to the local authorities for social care, which have been decimated by cuts in the 10 districts of Greater Manchester over the past five years? If it has been completed, will it be published to enable public scrutiny of its plans so that there is confidence by the public in what is being proposed?

Finally, to ensure full scrutiny and accountability for the health and social care devolution, would the Minister agree that there must be robust governance structures in place in Greater Manchester—or any other similar area—to ensure full public scrutiny and accountability, particularly of the decisions of the Greater Manchester partnership board? Will the Minister confirm that all recommendations and decisions of the partnership board will be reported to the combined authority and be open to public scrutiny and accountability, and that the oversight and scrutiny committee of the combined authority will also have a robust role in such scrutiny?

Further, a report should be presented to Parliament, as we have suggested in Amendment 36E, so that the rollout of the devolution of health and social care is in place to enable Parliament to properly monitor the outcomes in terms of, among other things, the quality and standards of the delivery of a comprehensive and integrated health service by the combined authority. Our Amendment 36D makes it clear that any transfer of health and social care functions must abide by the four principles laid out in the memorandum of understanding and repeated in the amendment.

Lastly, I would be grateful if the Minister would confirm that there is no intention to vary the principles outlined in the memorandum as the devolution of health and social care unfolds. I beg to move.

My Lords, I support my noble friend’s amendments, which provide us for the first time with an opportunity to discuss the relationship between the Bill and existing NHS legislation. I have degrouped my own amendment on NHS responsibilities for later discussion, because I wish first to hear the Minister’s response to this group of amendments. However, I promise the Minister that I will be returning to this matter on Monday.

I decided on this approach when I heard the Minister’s reply on Monday to my question about where the Health Secretary fitted in to the accountable Ministers in relation to the Bill, given the decision in February to delegate £6 billion a year of the NHS budget to the Greater Manchester Combined Authority. Her response was that Greater Manchester had agreed a memorandum of understanding with NHS England. That is true, and it may well be a good and sensible thing to do. However, it does not tell us very much about where this leaves the Health Secretary and his many duties and powers under the monster Health and Social Care Act—all 457 pages of it.

The Bill certainly does not make clear what happens when other areas come forward with their own proposals for delegating chunks of the NHS functions and budgets to combined authorities. I have read the current memorandum of understanding, which relates largely to 2015-16 as a build-up year for what will come later. The memorandum leaves a large number of loose ends relating to later years and the relationship of the combined authority with the Health Secretary under existing NHS legislation.

Having said all this, I make it clear that I am a strong supporter of the Bill and its approach to devolution. I very much share the views of the noble Lord, Lord Heseltine, about it. Unlike many of my colleagues on these Benches, I do not particularly oppose the idea of elected mayors; as a lifelong Londoner, I have experienced the benefits of a mayoralty. This year I also co-authored a policy paper for the think tank Reform entitled Letting Go, which discusses how English devolution could help solve the NHS care and cash crisis. Here I should declare my interests as a member of the advisory council of Reform and an adviser on health and care to the law firm Capsticks.

In the conclusion of our policy paper, my co-author and I went on to say about Greater Manchester:

“For the first time, a large city region has offered a model of healthcare in the UK that focuses on preserving and improving the health of all citizens rather than merely treating them when they are sick. It could provide a step change in health outcomes, particularly for the worst off. If successful in fixing the care model, this innovative approach could help make the NHS more financially sustainable, by controlling the numbers needing expensive acute care”.

This is a very big prize, but why are the Government so shy about putting some of this stuff in the Bill? Those are outcomes that we would all desire. We want them all for most parts of the country from our NHS, so why can we not be upfront and clear in the Bill about where the health and social care stuff—particularly the NHS functions and budgets—sits in relation to this Bill and combined authorities and sort out more precisely than at the moment the relationship between a combined authority and the Health Secretary, not just NHS England?

The key issue is how the Bill interrelates with the Health and Social Care Act 2012. If we want successfully to devolve NHS responsibilities in the way envisaged for Greater Manchester, as I hope we do, does not Parliament have to insert some provisions in this Bill which explain the relationship between those functions and the role of the combined authority and the Health Secretary and his duties and powers in the 2012 Act? This House spent months on that Bill and had to have a pause because there was so much difficulty and controversy over that legislation.

Only three years ago, Parliament and the previous Government set the future path for the NHS in a monster of an Act. Now we seem to be going into dark corners, shuffling away, trying to undermine that Act by slipping some functions through something called a memorandum of understanding to a combined authority without being clear where that leaves the Health Secretary and his duties.

I am not normally particularly sympathetic to the Health Secretary or to the problems of the 2012 Act, which was not one of Parliament’s finest hours, but the facts of life are that that is the legislation which governs the way the NHS is run in England now and for the foreseeable future, so trying to slide a set of changes through with combined authorities without being clear in the Bill what is going to happen in relation to the Secretary of State’s powers is a surefire recipe for confusion in the minds of the public, of the NHS and its staff and of the combined authorities.

My key questions to the Minister are: first, what collective discussions have taken place in government on the interrelationship of this Bill to the Health and Social Care Act 2012 when NHS responsibilities, funding and assets are to be devolved to combined authorities? Secondly, will the Minister tell the Committee whether the terms of the agreement with Greater Manchester will be further amended following the passage of this Bill before the Greater Manchester changes go live in 2016-17? Thirdly, what legal advice have the Government had on whether actions could be taken by authorities or the public under the terms of the 2012 Act to overrule the terms of a memorandum of understanding with a combined authority? Fourthly, is the process used with Greater Manchester going to be the way that subsequent transfers of NHS responsibilities to combined authorities will be handled after the passage of the Bill? We need answers to questions of that kind to be certain what is going to happen when the Bill goes on the statute book with relation to any transfer of NHS responsibilities.

In conclusion, I am a supporter of this Bill and of using it to devolve more responsibility from the NHS to local and regional levels, linked to other devolution to combined authorities. I do not want the Government’s proposals in the Bill to fail because insufficient thought has been given to the issues I have raised. We saw what happened with Andrew Lansley’s rushed and ill-thought-through NHS legislation, when its implications were not seriously addressed before Parliament passed it. I remind the Minister that the Prime Minister had to impose a pause on the consideration of that legislation because so much of it was ill considered and undeliverable.

I would very much like to work with the Government on the Bill and try to get it right; this is not a partisan matter. I hope that the Minister will clarify, either today or later in a meeting, how we can progress this issue. In the mean time, I can promise a debate next Monday on a revised version of Amendment 44D that seeks to define how NHS responsibilities can be devolved to combined authorities in a way consistent with the 2012 Act. I hope that the Government will accept in principle that something in this area has to be put in the Bill.

My Lords, these are very important issues. I am grateful to the noble Lords, Lord Bradley and Lord Warner, for all the points they have made, which I hope the Minister will take as constructive criticism. I anticipate that we will have a significant debate—or at least I hope we will—when we reach Amendment 44D on Monday. I simply want to say that Amendments 36D and 36E both have our support. They raise some very important issues and are a practical example of some of the issues we were discussing earlier today such as the NHS and social care, and how that works in practice in an area. This is an example of clarifying what is within scope for devolution to a combined authority and which Ministers have what powers with regard to the devolution of both resources and responsibilities. I will not detain the House any longer on this matter, but I expect that we will return to it when we debate Amendment 44D on Monday.

My Lords, although my political interest in social services goes back more than 40 years to the days when I was chairman of the social services committee in Newcastle—the four most productive years in my fairly long political life, which is rather a sad comment on the rest of it—I will confine myself to only one question. I have been a member of the health scrutiny committee in Newcastle since its inception, and I am not clear about the role, which is a statutory role, of the health scrutiny committee in the context of devolution. We will be debating later the question of overview and scrutiny within the combined authority, but I wonder how that will fit alongside what I take will be the continuing statutory responsibility of social services authorities at any rate to have an overview and scrutiny committee to deal specifically with health, well-being and social care.

My Lords, I listened with enormous interest to my noble friends Lord Bradley and Lord Warner, and I thank them for throwing a lot of light on the issues that as a non-specialist had left me puzzled. That is partly the result of the Government’s position that they will not think about anything in advance but will react to what local authorities ask to have, and will only then think about the consequences. This is an extreme example, but easily the best, of the outcome of that. Secondly, there is a lack of any Green Paper, White Paper, any consultation or discussion at length, which would have brought all these issues out. I would not at all be surprised, not at the scale of the health service issues but if the same kind of issues do not arise with regard to some other matters of devolution. Knowing whether the Government think of the issues in advance and are able to convey that to the public, let alone to Parliament, is enormously important. I hope that this debate will lead not merely to further discussions on Monday on the health and social care side but, in due course, to a reflection on other areas, perhaps at a later stage.

My Lords, as noble Lords have said, Amendments 36D and 36E make specific provision for the transfer of health and social care and NHS responsibilities. It is probably important to say straightaway that the Government share and are committed to the views underpinning the substance of these amendments—namely, that whatever devolution arrangements are entered into in a particular area, health and social care services in that area must remain firmly part of the NHS and social care system, and the position of NHS services in the area in relation to the NHS constitution and mandate cannot change. I hope that that clarifies the position. There can be no question but that, whatever devolution arrangements for health and social care are agreed with an area, all national standards for health services, social care and public health services must, as a minimum, be complied with.

As we have discussed throughout our debates, the context in which the Bill’s powers will be exercised is that of implementing bespoke devolution deals agreed with individual areas and reflecting each area’s proposals and ambitions for devolution. That said, the agreement that Greater Manchester has reached with NHS England illustrates the kind of devolution of health and social care services which areas may be seeking and which the Bill will facilitate.

The noble Lord, Lord Bradley, asked whether health will be a mayoral function under the new section introduced by Clause 6. The answer is that NHS bodies are seen as public authorities for the purposes of the Bill. The Greater Manchester deal does indeed put health as a function of the combined authority and not of the mayor. However, we would not want to prejudice any other deal. We would want to hear from areas and discuss with them what they want.

Greater Manchester and NHS England have set out their agreement in a memorandum of understanding and there are several underpinning principles to that agreement. First, in the field of health and social care, all decisions about Greater Manchester will be taken with Greater Manchester. The second principle is that Greater Manchester will remain part of the National Health Service and social care system; it will uphold the standards set out in national guidance and will continue to meet statutory requirements and duties, including those of the NHS constitution and mandate.

The third principle is that new models of inclusive governance and decision-making will be created with the intention of enabling the clinical commissioning groups in Greater Manchester, providers, patients, carers and partners to shape the future of Greater Manchester together. It is in creating these new governance arrangements that the powers in the Bill may need to be drawn on, giving to local authorities, together in their combined authority, the powers to participate in the strong, collaborative partnerships that they, NHS commissioners and providers will form to deliver on the principle that all health decisions about Greater Manchester will be taken with Greater Manchester.

Without going into the detail of the Greater Manchester arrangements, I would mention that these governance arrangements will be centred on two bodies— noble Lords have already referred to them. The first is the Greater Manchester Strategic Health and Social Care Partnership Board—for short, the GMHSPB. The membership includes the clinical commissioning groups, providers, NHS England and the local authorities. This will prepare and take forward a comprehensive Greater Manchester strategic sustainability plan for health and social care. The second is the Greater Manchester joint commissioning board, comprising the local authorities, the clinical commissioning groups and NHS England. Its role will be to commission Greater Manchester-wide services.

This is a broad, enabling Bill, and I do not believe it is necessary to include in it specific requirements about how particular powers might be devolved. Within the legislative framework that the Bill is creating, the safeguards are to be provided not by making specific provisions but by the requirement that the implementation of any particular devolution deal must be debated and approved by both Houses of Parliament. For such debates, it will be important that the full details of the deal concerned, how it was arrived at and the outcomes expected from it will be fully available to Parliament. As I said in the earlier short debate on housing, I am ready to consider whether the standard explanatory memorandums are—

I have a question on that point, so as to be absolutely clear. The Minister said that any of those functions will be debated in both Houses. Is she confirming that any proposals around the devolution of health and social care will be subject to scrutiny in both Houses of this Parliament?

Yes, my Lords, I am. They would be done by order, and any orders will be scrutinised through the affirmative process in both Houses of Parliament.

As to reporting on how a deal is proceeding, as I said in one of our debates earlier this week, a process for evaluating the progress on each deal will be discussed and agreed with each area as part of the deal. For example, the Greater Manchester deal has an extensive programme of evaluation, with evaluations being public documents available to all Members of the House, as well as to all with an interest in the area and the progress it is making. But again, I do not believe it is appropriate in our enabling Bill to make a requirement about the reporting or evaluation of some particular aspect of a deal, indeed an aspect that may not be in all the deals that are agreed.

I turn to specific questions that noble Lords have asked. The noble Lord, Lord Bradley, asked whether I would support the view that joint board membership should include representatives of the police, et cetera. In any one place, this will be a matter for the area concerned. In Greater Manchester, for example, it is for those concerned to agree who should be on the joint boards, which will reflect the responsibilities that the combined authority has. He asked the very simple question of whether the Secretary of State for Health will be ultimately responsible to the public for the delivery of health and social care. The answer is yes. He also asked about the Manchester MOU. Greater Manchester and all the health bodies concerned, including national bodies such as NHS England, as well as the Greater Manchester clinical commissioning groups, continue to work on the full details of the arrangements that they have agreed.

I am sorry to interrupt the Minister’s flow, but I am becoming extremely confused. Twice in her response the Minister has said that all decisions about Greater Manchester will be taken “with” Greater Manchester—in other words, not “by” Greater Manchester. In this last set of responses to my noble friend, she makes it clear that the Secretary of State is responsible for decisions about health in Greater Manchester. What I am struggling with is this: what is the purpose of devolving some of these health responsibilities to the Greater Manchester Combined Authority if the Secretary of State reserves a right to overrule or vet those decisions? I thought that when the Chancellor announced the Greater Manchester project with a great song and dance, a very strong emphasis was given to the ability of local people to take the decisions that affect their area.

Let me give the Minister one example to chew on. Greater Manchester is proposing to remove a significant number of beds from acute hospitals to put more money into preventive medicine and community- based services. The Minister will know that closing hospital acute beds is a very contentious issue up and down the country. Who will take that decision? Is not Greater Manchester at risk of saying, “Our population’s health would be improved by removing some of those acute beds and spending some of that money on preventive public health and community-based services”? Can the Secretary of State then simply overrule it, using his powers in the 2012 Act? That is a very practical, real example of where we could have conflict. I would like to know where the Government stand on that issue.

My Lords, Greater Manchester would work with clinical commissioning groups, et cetera, but would not itself deliver NHS services.

That was not my question. Perhaps I could explain to the Minister what it is. The clinical commissioning groups in Manchester could all agree that they should take a large number of beds out of acute hospitals in Manchester—not anywhere else—because it was in the best interests of and would achieve better health outcomes for that population. Could they—all the interested parties, clinical commissioning groups and even NHS England, with the combined authority—agree that that is sensible to do? Could we then have a situation in which the Secretary of State, under pressure from some bits of the local community or from the acute hospital, declined to approve that well thought-out plan by the combined authority with the clinical commissioning groups? It is a straightforward question. Is the answer yes or no to whether the Health Secretary can overrule them?

My Lords, perhaps I may clarify what exactly is being devolved. Greater Manchester will have the powers necessary to participate in a collaborative partnership which will develop health strategies for the place and commission health services. It would be a partnership arrangement. If within that partnership the Secretary of State thought that all of them collectively were making the wrong decision, I am sure that he would have something to say about it.

So the result is the Secretary of State reserving unto himself all the authority to overrule a locally reached decision. We can talk about partnership till the cows come home, but is not the reality—and this is a critical issue—that the Secretary of State, as one of the partners but the partner with the power under the 2012 Act, can simply overrule them because he thinks that is the right thing to do?

My Lords, I was not saying that the Secretary of State would overrule them for overruling’s sake, but if it was fundamentally a wrong decision, I am sure that he would have the power to intervene. I think that that is what the case would be. Does the noble Lord want to respond?

I will read Hansard and come back on Monday, because this issue seems to me an Exocet under some of the principles in the Bill.

My Lords, surely devolution means giving power to the local level; it does not mean doing that—as long as the Government at the centre agree. Surely devolved authorities must in principle have the right to take local decisions, otherwise it is not devolution.

Yes, my Lords, that is absolutely the case, but we have talked all along in this Committee about what happens if things go wrong and where the checks and balances are. We cannot have a situation where there is unfettered ability for people to do things without any checks and balances.

It is not a question of whether they have made a mistake or done something wrong, but of local choice. The Minister talked about a bad decision. To say that a local decision is a bad decision because it differs from a view that the Secretary of State takes does not seem to me to be in the spirit of devolution.

My Lords, perhaps I am not being clear enough. What I meant by bad decision is a decision that is made where the consequences are negative for the end user and have a detrimental effect, for example, on the patient or elderly person. The Secretary of State would have to intervene or call into question the decision of the collective bodies that had made it in partnership. Is the noble Lord more satisfied with that answer?

May I suggest to the Minister that we return to this on Monday afternoon because I do not think she will satisfy us this evening?

I know that we will return to it, and I look forward to that.

The noble Lord, Lord Warner, asked what legal advice had been received about the relationship between the MOU and the 2012 Act. NHS England and Greater Manchester have developed the MOU, and any draft order that the Government bring before the House to implement any arrangements agreed will of course be compliant with the relevant primary legislation. The noble Lord also asked about further change to the terms of agreement with Greater Manchester. We can envisage that, with the agreement of all concerned, devolution in Greater Manchester will develop.

The noble Lord, Lord Beecham, asked what the statutory roles of health scrutiny committees are in the context of devolution. Health and well-being boards will continue to exercise their statutory functions.

The scrutiny committee of the local authority is not the same as a health and well-being board. If the Minister does not have an answer now, perhaps she can advise me later.

I remember the health scrutiny committees in the context of AGMA and the combined authority. I am loath to deal with this point tonight, so I will come back with a firmer reply in due course and request that the noble Lord withdraw his amendment.

I am grateful to the Minister for the responses she has been able to make, and I am sure she will read the debate with as great an interest as we all will and write to us with further answers to the questions she has not been able fully to address this evening. I said at the beginning that this was the first, but I suspect not the last, debate we would have on health and social care. Our exchanges so far tonight have underlined that fact. We look forward to the next stage and further debate on Monday. In light of that, I beg leave to withdraw the amendment.

Amendment 36D withdrawn.

Amendments 36E and 36F not moved.

Amendment 36G

Moved by

36G: After Clause 6, insert the following new Clause—

“Further devolution of powers and funding (No. 2)

(1) No later than three months after the passing of this Act, the Secretary of State must consult combined authorities with a view to devolving powers and funding for strategic planning including in the areas of—

(a) mitigation of and adaptation to impacts of climate change;(b) natural resource use including water management;(c) delivery of low-carbon energy sources and infrastructure;(d) landscape-scale conservation, including green infrastructure. (2) The Secretary of State may only make an order to devolve powers and funding in the areas outlined in subsection (1) with the consent of the combined authority.”

My Lords, I will be brief with this amendment because I anticipate that the Minister’s response will be that it is too prescriptive and that the Government want to leave everything off the face of the Bill and see what happens along the way.

The amendment was raised with us by the RSPB and it raises a particular point that I would like to address. Specifically, it causes the Secretary of State to consult combined authorities over a number of strategic planning areas, in particular areas of,

“mitigation of and adaptation to impacts of climate change … natural resource use including water management … delivery of low-carbon energy sources and infrastructure … landscape-scale conservation, including green infrastructure”.

The helpful briefing note reminds us that the NPPF contains very positive policies for planning for biodiversity, such as planning for the creation, protection, enhancement and management of networks of biodiversity and green infrastructure.

The point that the society makes is that to be effective, it is essential that devolved strategic planning powers enable combined authorities to address and plan for social, economic and environmental issues in an integrated way across England. It points out the failure of the duty to co-operate because it is simply not strong enough. The key point I would raise on this is that whether it is on a more proactive basis or just a wait-and-see approach with piecemeal devolution of some of these strategic planning issues, the opportunity actually to join up across the country will inevitably be limited. Some of these issues ought to be looked at on a basis which is wider than any particular combined authority. It seems to be a component of this debate which perhaps we need to reflect on a bit more. I beg to move.

My Lords, I certainly support the amendment. Given that the combined authorities will cover quite large areas, I would say that it is essential that an integrated approach is guaranteed and not left to a kind of wider discretion, perhaps as part of a deal if it is less convenient for one combined authority—or, worse still, if there is disagreement within the combined authority. We need to know where these obligations will lie. There is a need for clarity here. I appreciate that we are talking about bespoke deals and that they will be different for different authorities. I am sympathetic to that because we do not have uniformity across the country. Nevertheless, these are important issues which have suffered from a piecemeal approach. There is now a real opportunity for a much more strategic approach and I am sure that the combined authorities will see this as an important matter, not least because some of these areas are quite controversial. So I hope that there will be some clarity around this, despite the need for the Secretary of State to have some kind of wider discretion. These are responsibilities and obligations, and we need to be clear about where they lie.

My Lords, the noble Lord, Lord McKenzie, will obviously not be surprised to hear me say that what we do not want to be in this Bill is prescriptive—but that is in no way to belittle the importance of the issues touched on in this amendment. For example, we expect local planning authorities to adopt proactive strategies to mitigate and adapt to climate change, taking full account of flood risk, coastal change, and water supply and demand considerations. They must have a positive strategy to promote energy from renewable and low-carbon sources. While what we look for locally is set out in national planning policy and guidance, we have been very clear that local plans prepared by democratically accountable local councils are key to delivering sustainable development that reflects the vision and the aspirations of local communities.

Having said that, as we discussed in a number of our earlier debates, these prescriptive amendments go against the grain of the approach of the Bill, which is to start a conversation with each area about the powers and budgets that they would like to have devolved to them in order to improve their economy, deliver better local public services and build sustainable prosperity. We are definitely not in the position of trying to prescribe what they think they should be including and so we have no preordained list of powers which might devolve. In common with similar previous amendments, I am afraid that this amendment is out of step with the whole approach that the Bill is designed to deliver, and I would respectfully ask the noble Lord to withdraw it.

I thank the Minister for her reply and the noble Baroness, Lady Janke, for her support on this issue. I am not surprised and I do not think that the response takes us further forward. It seems to me that it does not address the fact that issues around climate change and water management do not stop at, for example, the boundaries of Greater Manchester. They transcend them, and as indeed they do international boundaries. The piecemeal approach being taken really does negate and make it more difficult to deal with these issues comprehensively and effectively.

As I said, we have the duty to co-operate in our planning framework but we know from practice that it is simply an insufficient mechanism and tool to address these issues. Given the hour, I shall withdraw the amendment, but there is a principle about how these broader national issues sit with devolution that we need to return to on some basis. I beg leave to withdraw the amendment.

Amendment 36G withdrawn.

Clause 7 agreed.

Schedule 3: Overview and scrutiny committees

Amendment 36H

Moved by

36H: Schedule 3, page 22, line 15, after “taken,” insert “or under consideration,”

My Lords, the amendments in this group relate to the overview and scrutiny committees of the combined authorities and concentrate on what can only be described as the extraordinary powers the Bill confers on the Secretary of State to prescribe, and indeed circumscribe, the way in which they may operate. The provisions are contained in Schedule 3 to the Bill.

Amendments 36H and 37B would establish that the committee may consider not only decisions made or action taken, which is the limit of the powers conferred by the Bill as it stands, but such matters as may be under consideration—echoing the current practice in local authorities, which can look forward as well as back. Amendment 37B applies this principle to mayoral combined authorities.

Amendment 39AA would require the guidance by the Secretary of State, which again is provided for in the Bill, on the functions of overview and scrutiny committees to be approved by the affirmative procedure.

Amendment 39C is a probing amendment to seek an explanation of the Secretary of State’s extraordinary assumption of the role of determining who may or may not chair an overview and scrutiny committee or be a scrutiny officer. It is remarkable that, in an allegedly devolutionary Bill, the Secretary of State should arrogate such a power as to prescribe who might or might not perform those functions.

Amendment 40A probes the Secretary of State’s power to make orders as to the publication of reports, recommendations and disclosure of information to the overview and scrutiny committee. Given that the Local Government Act 1972 already allows councils to go into private session if this should be required, subject to advance notice and public challenge, why do the Government not simply extend those provisions of the 1972 Act to overview and scrutiny committees?

Amendment 40B would require the affirmative procedure to be applied to orders relating to the membership and structure of overview and scrutiny committees, thereby ensuring continuing parliamentary scrutiny over the process. I beg to move.

My Lords, we have tabled Amendments 41 and 42. I will not add to what the noble Lord, Lord Beecham, has said, but I subscribe to the views he has expressed.

Our amendments in this group relate to the membership of the overview and scrutiny committee. We said in the first day of Committee that we did not want to create one-party states, so we have been seeking ways in which we can propose amendments that will deliver that outcome. This is to take the proportion of votes cast for each political party at the most recent local government election for the combined authority’s constituent councils.

The reason why this matters is that, if you take seats only won under the first-past-the-post system, one particular party in most of the areas currently subject to or considering combined authorities would absolutely dominate the overview and scrutiny committee—indeed, the Conservative Party has very few seats in northern cities—so this would not be good for the democratic process. I think that the overview and scrutiny committees ought to have a significant number of opposition members and that that should be calculated on the basis of votes cast in the last election, rather than on the number of seats that they win under first past the post.

In terms of the chair, there are a number of examples in local government where scrutiny committees are chaired by a councillor who is a member of the opposition. That principle should extend to the combined authority. Amendment 42 says that the chair of such a committee must be a member of a political party other than the party of the mayor of the combined authority.

My Lords, the issue of effective scrutiny has come up a lot during the course of the Bill. As I said during the debate on the previous group of amendments, I am ready to have discussions with noble Lords across the House about their ideas for strengthening scrutiny.

Amendment 39C would remove the power for the Secretary of State to make provision about the chair of an overview and scrutiny committee and about the appointment of a scrutiny officer. I am not sure that removing the ability of the Secretary of State to ensure, if it were deemed appropriate, that all overview and scrutiny committees have a scrutiny officer, or to make provisions about the chair, would achieve our joint aim of strengthening scrutiny and safeguarding against a one-party state.

Nor am I clear that Amendment 40A would strengthen overview and scrutiny. The amendment would remove from the scope of the order-making provision on overview and scrutiny issues the publication of reports et cetera and the information which must or must not be disclosed to an overview and scrutiny committee. I am clear that strong scrutiny needs the overview and scrutiny committees to have access to all the information that they consider necessary to pursue their work. Equally, it is important that their reports and recommendations are public, transparent and properly taken into account by those making decisions. The following amendments essentially set out some of the ideas that may achieve these aims and the substance of which we will wish to consider carefully.

Amendments 36H and 37B seek to expand the scope of overview and scrutiny so that it includes the possibility of an overview and scrutiny committee examining not only decisions made or actions taken, but decisions made or actions “under consideration”.

Amendment 41 would require that any order made by the Secretary of State about the membership of an overview and scrutiny committee must ensure that such membership reflects the proportion of votes that each political party received at the most recent local government election for the constituent councils. Amendment 42 would require that any order made by the Secretary of State about the chair of the overview and scrutiny committee or committees must include provision that the chair is to be a representative of a different political party from the party of the mayor of the combined authority. Amendment 49 provides the definition of “party” for these two amendments. While I believe that there are some practical issues with Amendment 41, given that not all parties who receive votes at an election may have an elected member, I understand the concern that underpins the amendments.

Finally, Amendments 39AA and 40B seek to introduce the affirmative procedure for orders and guidance about overview and scrutiny. Given the importance that we attach to overview and scrutiny, I have some sympathy with the aims of these amendments, and, indeed, in our wider consideration of how best to strengthen overview and scrutiny. We may consider that some matters might be better dealt with on the face of the Bill, rather than through secondary legislation. In our previous short debate I highlighted some of the important issues that we will wish to consider when looking at how to make scrutiny strong and effective in all areas. This, most importantly, includes those areas where the members of the combined authority come from one party.

Given this commitment, I hope that the noble Lord will feel able to withdraw his amendment.

I take it from that that the Minister is offering discussions on all these amendments and not ruling any of them out.

That is welcome, and I am certainly prepared to withdraw my amendment. I have to say that I am not overimpressed with at least one of the amendments tabled by the noble Lord, Lord Shipley, relating to the percentage vote of parties that may well achieve no membership at all of the local authorities they have contested but will somehow appear on the combined authority. Of course, that general view is consistent with the proposals that the Liberal Democrats made for the composition of your Lordships’ House, about which I suspect we will hear very little for the next few years.

You could actually have a minimum threshold of, say, 5% of the vote, which would remove some of the objections that the noble Lord, Lord Beecham, has.

It would not, because 5% of the vote across an area may produce absolutely no councillors elected to those authorities at all; their only role in local government would then be to be appointed to the combined authority. That seems a ludicrous outcome. However, the noble Lord and I have been on good terms for virtually the whole evening and I would not like him to go away feeling too disappointed.

We will see what happens on Report, but I look forward to the discussions with the Minister on those matters which she has indicated are subject to further consideration. I beg leave to withdraw the amendment.

Amendment 36H withdrawn.

Amendment 37 not moved.

Amendment 37A

Moved by

37A: Schedule 3, page 22, line 22, at end insert—

“(d) to appoint an independent chair of a committee to review and scrutinise the authority’s financial affairs; (e) to review and assess the authority’s risk management, internal control and corporate governance arrangements; and(f) to review and assess the economy, efficiency and effectiveness with which resources have been used in discharging the authority’s functions”

My Lords, Amendment 37A is ultimately of some importance. It seeks to establish an audit committee for authorities created under the provisions of the Bill. I cannot claim to be as well qualified in respect of matters of audit as my noble friend Lord McKenzie, a former partner in PwC and a former leader of Luton Council, in which latter capacity he was presumably an auditee rather than an auditor, but I have served for a number of years as a member of Newcastle’s audit committee, which is politically balanced, with an independent chairman who is not a member of the council and two other independent members.

Given the potential role of the combined authorities, part of whose raison d’être will of course be to achieve economies of scale and ensure the most effective use of resources devolved by government departments and public bodies, something akin to a local version of the Public Accounts Committee would be a highly desirable addition to the role of overview and scrutiny, especially if independently chaired. The amendment sets out a job description which should facilitate proper oversight of the combined authorities’ management and governance. It is not unduly prescriptive and I would personally welcome the inclusion of additional independent members who might be drawn from business, academia or the third sector.

Again without going so far as to lay down a requirement, I hope that the combined authorities would eventually adopt a process of peer review across their whole field of operations. This has proved its worth in the local government world and would usefully augment whatever procedures are adopted in relation to this amendment.

It would be interesting to learn what the Government have in mind for assessing their own relationships with combined authorities and the workings of the partnerships between government, public bodies and the combined authorities collectively. In any event, I urge the Minister to consider sympathetically the proposal for an audit committee, preferably one that is independently chaired, because the role is not quite the same as that of an overview and scrutiny committee. I serve on both types of body in my own authority. They have different roles and I think it is critical, given the importance of the subject matter and the amount of money that will be spent, that there should be that function embedded in the new system. I beg to move.

My Lords, in broad terms I very strongly support Amendment 37A. I am very glad that the noble Lord, Lord Beecham, talked in terms of the Public Accounts Committee, which is slightly different from a committee that will simply review and scrutinise the authority’s financial affairs. It is actually about the efficient and effective use of public money, and one of the objectives of devolution is to ensure that local areas spend money more appropriately so that the spending is more effective in the outcomes it achieves. That has to be audited in some way. The only way that that can be done is in something like a public accounts committee for the area of the combined authority. Therefore, I hope that the Minister will look at that suggestion as I think that it would help enormously, first, in ensuring that the Government’s objectives are being delivered but, secondly, in giving the public confidence in the expenditure of the money that they are paying for through taxation.

I say to the noble Lord, Lord Beecham, that it is always very difficult to know who should appoint an independent chair, but I think that I heard him talk about a number of independent members. I would be happier with a situation in which there were a number of independent members of such a committee because I think then you would get a spread of expertise and experience that would enable the public to have confidence in its deliberations.

There are three amendments from these Benches in this group—Amendments 38, 39 and 40. Broadly speaking, they seek to give two powers to the overview and scrutiny committee. The first is the power to delay a decision in order to enable further public consultation to be carried out where the overview and scrutiny committee believes that that is necessary, often because information that is required has not been given to it. Secondly, Amendment 40 gives the overview and scrutiny committee powers to compel other bodies, including the combined authority, to provide information to the committee and to specify what form this information should take.

I am very heartened by the Minister’s response to the last group of amendments because, if the public are to have confidence in the functioning of the combined authorities, which is, in practice, an additional layer of local government, we have to get the overview and scrutiny right. Judging by what the Minister said, I think that is now the Government’s intention, so I hope that between now and Report we can have the necessary discussions to progress on that.

I thank both noble Lords who spoke to these amendments and will say pretty much what I said in response to the last group of amendments—namely, that we have considerable sympathy with what noble Lords are saying. Therefore, I reiterate my willingness to have discussions and hope that the noble Lord will be willing to withdraw the amendment.

I am delighted with the Minister’s usual co-operative stance. I am happy to accept her acceptance of my suggestion and look forward, together with the noble Lord, Lord Shipley, and others perhaps, to see whether we can get something agreed between now and Report. In the circumstances, of course, I beg leave to withdraw the amendment.

Amendment 37A withdrawn.

Amendments 37B to 39 not moved.

Amendment 39A

Moved by

39A: Schedule 3, page 23, line 31, after “persons” insert “, including representatives of parish councils in the area of the combined authority,”

My Lords, in speaking to this group of amendments standing in my name, my intention is to ensure that the community or neighbourhood voice is heard. I pay tribute to the National Association of Local Councils for the assistance I have received from it in preparing the amendments.

The Bill is largely silent on this next level of devolution and my amendments are designed to ensure a discussion on how we see the neighbourhood level input developing alongside the new structures it proposes. Given the hour, it may be a one-way dialogue, but I flag it up anyway. I say in advance that I do not expect a detailed reply from the Minister tonight. Devolution must not stop at the strategic, combined authority level, any more than it stops at the principal council level. We will miss an important opportunity if we overlook the neighbourhoods and do not build community capacity and engagement with the more local matters that impact directly on people’s lives. A twin approach of devolution, to the strategic on the one hand and the neighbourhood on the other, is required here.

I seek to follow the direction of travel of localism and the empowerment of the 9,000 community, neighbourhood, parish and town councils up and down the country—the first tier of local government and the backbone of local democracy in England. That policy was to devolve the process of government and with it, responsibility for action to improve areas to the most local, practical level consistent with adequate standards of delivery. To the many principal councils that take their responsibilities towards the spirit of that seriously, I give due credit and many thanks. Sadly, in some principal council areas localism is taken to mean central government devolving powers to them, along with the pounds that go with that, but no further—or, if it is any further, then only devolving responsibilities shorn of the pounds that once financed them. That will not do.

My amendment serves to remind the Government, and thereby I hope the new mayoral combined authorities that will be created under the Bill, of their duties. There is good reason for this. One has only to look at the difficulties faced by the residents of Queen’s Park in Westminster in gaining their historic parish council status and the continued resistance of many London boroughs and principal councils outside London to the very notion of new parish councils, with their independent money-raising powers, giving people a voice and taking action to improve community well-being and local vitality. It is not just a London issue; Andover Town Council in Hampshire also gained its status in the face of stiff principal council opposition.

I know how some principal councils are reluctant to devolve powers to local level and work more closely with our important first tier of local government. It is as if the message was, “We know that we don’t really capture the very local community element of our electorate. We aren’t going to allow people to get together and do it for themselves, either”. That is bad for society, democracy, political stability and the image of local government. There is every reason to be cautious as to whether the new mayoral bodies will adopt evolution through devolution or simply become centralist in their own terms. If it is the latter, localism stops midstream, the neighbourhood plan becomes a work of fiction and “community” simply a matter of a wholly owned and controlled subsidiary of some city hall that might just as well be somewhere in Whitehall.

I turn to the detail of my amendments. Amendments to Schedule 3 provide for parish and town council engagement and involvement in overview and scrutiny committees, the purpose of which is outlined in the Explanatory Notes to the Bill. Parish councils are part of that family of local government, growing in number, role and importance. I maintain that they are about the most accountable and democratically responsive part of that family. The provision for the creation of new local councils to meet the aspirations of communities is already enshrined in legislation. I add that the more recent reforms to that process are most welcome. Amendments 39A and 39B serve as a prompt for the duty to include parish council representatives in any overview and scrutiny function. This can only strengthen the process, add value and ensure a more robust future, making sure that the strategic also relates to the local.

On Amendment 44E, I would explain that Clause 10(1) makes provision for the Secretary of State to make regulations regarding three areas: governance; constitution and membership; and structure and boundaries. My amendment would add a fourth measure to require principal councils within a mayoral combined authority area to conduct,

“a community governance review … within two years of this Act coming into force”.

The combined authorities will be afforded greater powers precisely because they feel they can serve their community better by that means. I hope that it will be seen that this amendment tries to build on precisely that point.

Amendment 50 is very much on the same tack. Schedule 4 amends, inter alia, the Local Democracy, Economic Development and Construction Act 2009. My amendment would insert a further criterion in relation to Section 23 of that Act. Noble Lords with instant recall will know that Section 23 relates to the, “Duty of public authorities to secure involvement”. I paraphrase, but it specifically refers to “information” about the “exercise” of functions, consultation over that exercise and involvement “in another way”.

Section 23(2) goes on to list the bodies to which this applies. My amendment would simply add a further reference to extend the application to the mayoral combined authorities that will be created by the Bill. I hope that the Minister will see the merit in the principle and that this is not insisting on some obsessive parish council creation approach. Instead, I hope that it will discourage some of the less satisfactory blocking procedures that seem to have been created and make sure that this goes forward as a genuine partnership within the family of local government. I beg to move.

My Lords, I pay tribute to the work of parish and town councils and to their national organisation, the National Association of Local Councils, I think it is called—NALC. Having said that, I do not think that the proposal that the noble Earl has made is really a very practical one. The area I live in, which I am afraid I keep citing, is enormous, and there are others like it. I do not know how many hundreds of parish councils and therefore parish councillors there are in the area between the Tees and the Tweed, but I suspect that there will be a very large number. Quite how you would appoint people from there to an overview and scrutiny committee, I am not entirely sure.

I also do not think that this is really what is needed. I have an alternative suggestion to make to the noble Earl, which perhaps will be considered by the Minister. Should there be parish councils in the area of a combined authority, there should be a requirement on the combined authority, and on the mayor if there is one, to meet at least annually with representatives of those parish councils. After all, we are talking here essentially about large strategic issues, not very specific local ones. Although there should be a local voice at some point in the process, I do not think that it is realistic to add them to an overview and scrutiny committee. It could not be very representative anyway unless you had large numbers of such people on such a committee; it would not cover the whole area.

A better way might be to require the combined authority and/or the mayor to meet on at least an annual basis—it could be more often than that—with a representative group from across the whole of the parish and town council interest in the area concerned, to discuss the overall position. It would be part of the consultations that those bodies would be having with a variety of bodies, but recognising the particular position of those who have been elected to their very important but very local office. That would meet the more important aspirations of those people better, if I may say so, than the attendance of perhaps one person, representing so many hundreds of others, on an overview and scrutiny committee. I am not moving anything at this stage, but we and the Minister may want to consider it as a possible alternative to the noble Earl’s amendment when we get to Report.

My Lords, I say at the outset that we value very greatly the work that parish councils do up and down our country. As the tier of local government closest to their communities, they provide a democratically accountable voice for taking community action. Parish councils provide services to their communities and have also played an important role in neighbourhood planning, setting the priorities for their local area in line with the local plan.

It is entirely right that a wide range of people from the community are able to participate in scrutiny of the combined authority in one way or another. An overview and scrutiny committee can invite parish council representatives to its meetings. We do not see, however, that it is necessary to name them on the face of the Bill, as the Bill already provides that an overview and scrutiny committee may invite any persons to attend its meetings.

We must balance the wish to have a wide involvement in overview and scrutiny with the need for a committee to be of a suitable size to be effective. Having parish councillors as members of an overview and scrutiny committee may not be the best way to achieve that, but there may be other ways to encourage parish council involvement. The noble Lord, Lord Beecham, made a good suggestion which good practice might dictate that a mayor, combined authority or scrutiny committee might wish to take up.

I would be happy to include the noble Earl, Lord Lytton, in conversations about ensuring strong scrutiny, notwithstanding what I just said. As I said in our earlier short debate on scrutiny, I am ready to have discussions with noble Lords across the House about their ideas for strengthening scrutiny. I hope the noble Earl will therefore be happy to withdraw his amendment and take part in discussions about scrutiny.

Let me move on to Amendments 44E and 50. In essence, Amendment 44E would mean that the Secretary of State could make provision in secondary legislation about all local authorities in the area of a mayoral combined authority undertaking a community governance review within two years of the Act coming into force. In essence, this is about the regulations under Clause 10 being able to modify the existing provisions about the procedures that lead to the creation of parish councils.

Whatever the merits of parishing an area, I do not believe that this amendment is necessary or appropriate. It is open to local authorities today, if they want, to undertake a governance review and consider whether their area should be parished. The legislative reform order, or LRO, that the Conservative-led coalition Government made in the last Parliament streamlined these processes. There is nothing to prevent what the noble Earl wishes to see happen if the local authorities concerned want to do that. Moreover, the regulations under Clause 10 can be made only with the consent of the local authorities to which the regulations apply. Hence the proposed amendment would add nothing.

If it is the noble Earl’s intention that the proposed amendment should in some way require councils in the area of a combined authority to undertake these governance reviews, then that is something that we could not agree to. It would be an imposition on an area. As I have made clear, we do not intend to impose anything on anyone anywhere. Having said that, let me make clear that we are not in any way opposed to parishes. Indeed, where areas wish to form parishes, there should be a simple and streamlined process for them.

On Amendment 50, again I am clear that this would be unnecessary central prescription. I appreciate the underlying intention that there should be effective democratic involvement of local people in the decisions taken by the governance institutions of their area, including combined authorities. It is open to any combined authority to involve the communities and businesses of its area in any way it feels appropriate. It does not need this amendment to be able to do that, and the amendment does no more than that. It would mean that, where a combined authority considered it appropriate that representatives or interested persons should be involved in the exercise of its functions, it should take such steps as it considers appropriate to secure that.

With those words, I hope the noble Earl will be happy to withdraw his amendment.

My Lords, I am very grateful to the Minister for that. I would certainly like to take her up on her suggestion of further discussions. I hope to be in touch with her shortly in relation to that. I am grateful for her reply generally, which was much more extensive than I had expected given the hour.

I have just a brief word on the point raised by the noble Lord, Lord Beecham. I quite understand his point but think that he assumes that somehow underneath NALC as a national association there is nothing other than the 9,000 foot soldiers forming the parishes. That is not how it is structured; there is a series of district and county associations, and some of the county associations have come together in larger collectives. There is now a good deal of encouragement from within NALC towards such working practices.

For instance, when representatives are selected to go to national council, we cannot have 9,000 people in one room as there would be nowhere big enough to house them, so there has to be a selection process. There would be no difficulty with, for example, something the size of a county association or a multi-county association. In Sussex, I am involved with a triple association consisting of East Sussex, West Sussex and Surrey. They have come together and do a lot of these things jointly. So there would be no difficulty in arriving at a sensible way of providing a representative to be part of the discussion process, as I suggested.

The hour is late and I have spoken for long enough. I thank the Minister and the noble Lord, Lord Beecham, for their comments. I beg leave to withdraw the amendment.

Amendment 39A withdrawn.

Amendments 39AA to 42 not moved.

Schedule 3 agreed.

House resumed.

House adjourned at 10.06 pm.