HC Deb 24 March 1999 vol 328 cc459-72
Mr. Waterson

I beg to move amendment No.60, in page 3, leave out lines 28 to 30.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No.61, in page 3, line 31, leave out 'or standards'.

Government amendment No.6.

No.62, in page 3, line 35, leave out 'and standards'.

No.46, in page 3, line 39, leave out from 'and' to end of line 41 and insert 'shall do so in the terms recommended to him by the Audit Commission.'

No.64, in page 3, line 41, after 'Commission', insert 'and any other statutory body specified by order.'

No.47, in page 3, line 41, at end insert — '() in any instance when he specifies a performance indicator or standard in terms contrary to any recommendations made to him by the Audit Commission, shall publish with the order an explanation of his reasons for doing so.'.

No.77, in clause 14, page 9, line 37, leave out from 'if to end of line 39 and insert 'a report under section 13 recommends that the Secretary of State give a direction under this section.'.

No.78, in page 10, line 3, after 'opinion', insert ', having regard to the report issued under section 13 and any recommendations therein,'.

No.79, in page 10, line 5, after 'Part', insert 'and is proportionate to the degree of failure identified in the report issued under section 13.'.

No.80, in page 10, line 17, leave out 'or for so long as the Secretary of State considers appropriate'.

No.48, in page 10, line 22, at end insert— '() where the Secretary of State exercises any function of the authority, he shall publish a statement of the way in which he will exercise that function, how this will remedy any failings set out in the Audit Commission's report, and the period of time over which he expects to exercise this function.'.

No.81, in page 10, line 26, leave out '(if any)'.

No.5, in page 10, leave out lines 33 to 43 and insert— '(8) No direction under this section shall be given unless a resolution in support has been approved by the Select Committee on the Environment, Transport and Regional Affairs.'.

No.49, in page 10, line 33, leave out subsections (8) and (9) and insert— `() The Secretary of State may give a direction before the expiry of one month as specified in (7) above, if he considers the direction sufficiently urgent.'.

No.86, in page 10, line 33, leave out subsection (8).

No.87, in page 10, line 34, leave out 'he' and insert 'the report issued under section 13'.

No.88, in page 10, line 39, at end insert— 'c) representatives as required under section 3(2).'.

Mr. Waterson

The first amendments in this important group alter clause 4. Amendments 60 to 62 would reduce the Secretary of State's discretionary power to set standards for local authorities. The key theme of the Bill is the Secretary of State's gathering to himself of some extraordinary powers over whose exercise there will be little control. Clause 4 is another example of that.

Performance indicators should be set centrally, but performance standards could profitably and sensibly be decided by local people, through their elected representatives. The amendments provide a litmus test of whether the Government mean what their rhetoric says about returning power to, and trying to rejuvenate, local government, and of whether they are willing to trust local government to make such decisions.

If local government is to mean anything, it must recognise that different people in different parts of the country have different needs, aspirations and approaches. We want a looser rein than the Bill allows, and an explanation from the Minister of why the Secretary of State needs such tight controls. Why do the Government not trust local government?

Government amendment No.6 relates to consultation by the Secretary of State on performance standards and indicators. The reference to consultation is a welcome gesture from the Government, but imposes no terribly heavy burden on the Secretary of State, mentioning such persons as he thinks fit. He may choose as few or as many as he wishes. It is a pretty puny requirement, which bears comparison—although there is no direct read-across—with how clause 3 sets out in graphic detail the sort of people that best value authorities must consult. Clause 3 creates detailed obligations for authorities setting out who they must consult, and, perhaps, implying those they should not or need not consult.Pill the Minister explain the philosophy behind the rather wishy-washy consultation requirement? If the Government really believe in consultation, why do they not spell out that belief in the Bill?

Amendments Nos.46, 64 and 47 would limit the Secretary of State's discretionary power to vary the performance indicators that he will set for local authorities from those recommended by the Audit Commission. The Bill requires him to have regard to the recommendations, but in practice gives him carte blanche to act as he sees fit. We could usefully tweak those powers, circumscribing them somewhat.

7.45 pm

Clause 14 deals with the Secretary of State's powers. There can be few precedents, at least in peacetime, for the panoply of powers that the Secretary of State seeks in order to enforce his will on local government. Amendment Nos.77 to 79 would remove from the Secretary of State the decision as to whether the local authority is failing to comply with the best value regime.Pe say that the criteria should be measured and established by the Audit Commission, which would remove the temptation for political interference and make sure that the best value regime operated objectively.

No one will argue with the proposition that a lot of faith and confidence from both sides of the House reposes in the Audit Commission because of the expertise that it has built up over many years. It seems sensible to have the commission monitor that part of the Bill.

Clause 14(5) allows the Secretary of State to take over the running of a local authority service, an extraordinary power to be proposed by a Government who pose as the champion of local democracy and accountability. The Government want the power, and they will certainly be able to drive the measure through under the guillotine and by use of their majority. However, amendments Nos.80 and 42 would oblige the Secretary of State to announce in advance a time limit to his function, or to seek a new order before he continues in this role. They would also require him to say in advance how he would go about remedying the failure that he felt had required his intervention.

That is no more than the Secretary of State requires of the authorities under the Bill. If they must show that they are tackling issues in a clear and structured way, it is much more necessary for central Government, who are not accountable in quite the same way to local people, to do precisely the same.

The Bill would allow the Secretary of State to issue a direction without having received a report from the Audit Commission to the effect that remedial action was necessary. He would require no external evidence or sanction before intervening in a draconian fashion in local affairs. Amendment No.81 would prevent such arbitrary action.

I shall deal only briefly with amendment No.5, as it was tabled by the Liberal Democrats, one of whom may wish to deal with it in detail. It appears to make the Secretary of State accountable to the Select Committee on the Environment, Transport and Regional Affairs.

Clause 14(8) enables the Secretary of State to issue direction without reference to the constraints imposed by earlier subsections. That would give him unprecedented power to intervene in matters that are properly the affair of local authorities without reference to Parliament or the Audit Commission as impartial arbiters of best value. Amendments Nos.49, 86 and 87 rein in the Secretary of State to ensure that he is guided by the Audit Commission.

Finally, amendment No.88 would oblige the Secretary of State to consult with the same bodies that local authorities must consult when they draw up best value strategies. As with amendment No.48, it imposes on the Secretary of State the same conditions that he imposes on local authorities. If he is to be directly responsible for the functions of a best value authority, he should prove that he has a plan that will satisfy the local community in whose name he intends to act.

This large group of amendments covers two clauses. The Opposition's guiding light throughout the Bill's progress has been that the powers demanded by the Secretary of State are extensive and sometimes draconian.Limits should be set on them. There should be a tighter rein on the Secretary of State' s powers and on how and when he can exercise them.

Mr. Sanders

I beg to move amendment No.5 in the name of my hon. Friend and myself.

Mr. Deputy Speaker

Order. There is no need for the hon. Gentleman to move his amendment.Pe group all the amendments together. The only amendment that has been moved is the first amendment in the group, in the name of the hon.Member for Eastbourne (Mr.Paterson). The hon. Gentleman may wish to say simply that he supports the amendment, to avoid confusion.

Mr. Sanders

Thank you, Mr. Deputy Speaker.Of course we support the amendment that the hon.Member for Eastbourne (Mr.Paterson) has just moved.

Amendment No.5 leaves out lines 33 to 43 and removes the power of the Secretary of State to operate by order of mandamus. It would replace that power with a process of resolution approved by the Select Committee on the Environment, Transport and Regional Affairs.Yesterday, we received the latest version of the protocol between central and local government. The existence of the protocol implies some consultation and agreement on the way forward, but clause 14(8), (9) and (10) are the ultimate coercive powers that the Secretary of State would have if this part of the Bill were not amended. He would have the power to determine urgency and need for action without reference to the House. The only reference to the local authority required is that he has to inform it of what action he has taken—he does not have to consult it.

The Minister referred to referendums. They are a form of consultation. Any Minister in the new regime would not look kindly on a local authority that simply informed its local residents of its council tax rather than consulting them. What is supposedly good for local government does not seem to be replicated for central Government in the Bill. The LGA still has concerns about the protocol, especially on the use of urgency powers, of which notice does not even need to be given to local authorities.

We believe that clause 14 is crucial. Although our amendment would not remove as many of the new centralising powers given to the Secretary of State as we would like, it at least provides a solid mechanism for parliamentary scrutiny of those powers.

Mr.Lansley

I am grateful for this opportunity briefly to speak to four amendments within the group. Amendments Nos.46 and 47 are not complementary but competitive. For reasons on which I will not elaborate because my hon. Friend the Member for Eastbourne (Mr.Paterson) referred to them, there is everything to be said for tweaking the powers of the Secretary of State. There will naturally be some creative tension between local authorities and the Government about the manner in which performance indicators or standards are to be set.Local authorities might well take reassurance from the fact that the indicators would be set in terms recommended by the Audit Commission. Fortunately, the reputation of the Audit Commission is such that hon.Members on both sides of the House ought to be happy that its history and knowledge of local authorities well equip it to recommend satisfactorily to the Secretary of State the basis on which the standards should be set.

I recognise that Ministers are normally not minded to circumscribe themselves, so if they are not minded to go as far as accepting amendment No.46, I commend amendment No.47 to them. If the Audit Commission takes the trouble to recommend performance indicators or standards to the Secretary of State and he chooses not to follow them, local authorities will find it helpful if any order published is accompanied by reasons why the Secretary of State has gone down a different path. That will remove any sense that the indicators or standards are arbitrary.Of course, Ministers never behave arbitrarily.

Amendments Nos.48 and 49 also relate to clause 14. Amendment No.49 has the purpose of removing those subsections that allow the Secretary of State to act urgently without consulting and simply to notify the relevant authority and such persons as the Secretary of State sees fit of what he has chosen to do and why he has chosen to do it urgently. The amendment would replace those subsections with a different mechanism, the purpose of which would not be to constrain the Secretary of State in acting in an urgent manner, but would require him to go through a consultation period, although obviously on a highly accelerated basis, without observing the one-month period that would otherwise apply for consultation.

I admit that amendment No.49 would not enable the Secretary of State to act quite as swiftly as the Bill presupposes, but local authorities would find it a great deal more satisfactory procedurally if the Secretary of State consulted—albeit in the space of hours rather than days or weeks—and then acted, rather than acted and then notified. There is a big difference between those two things.

For my money, amendment No.48 is the most important in the group, and I hope that Ministers will take it on board. If a report from the Audit Commission deemed an authority to be failing to exercise its functions, and the Secretary of State took it over, it would be incumbent on him to say how he proposed to exercise that function, how he would remedy the failings set out in the report, and the period during which he expected to exercise the function. The amendment does not bind the Secretary of State to exercise that function for any specific period or in a specific way, but at least in this culture of measurement the Secretary of State will be measured at the outset as to the manner in which he takes over a function, how he exercises it and for how long.

I commend amendments No.48 and 47 to the Government and hope that, even at this late stage, they are willing to take them on board.

Ms Armstrong

This is a rather large group of amendments so I will get through them as quickly as I can. I shall start with Government amendment No.6. In Committee, we gave a commitment to the hon.Member for Taunton (Jackie Ballard) —I am sorry that she is not here, because this is her moment of triumph—to table an amendment to require the Secretary of State to consult widely before he issues an order specifying performance indicators and standards. Amendment No.6 fulfils that commitment. It is a commitment that we gladly give, as it has always been the Government's intention to undertake wide and inclusive consultation on the likely suite of national performance indicators and standards for best value. It is a commitment that we freely gave in both local government White Papers that we published last year.

I reiterate what was said in Committee.Performance indicators cannot and will not be developed in isolation or without the interest of those in the field, including the best value pilots and any successors. The consultation will be wide-ranging and open. It will include best value authorities, representative bodies of the private and voluntary sectors, of consumer organisations, trade unions and other bodies that the Secretary of State considers will usefully contribute to the debate. Such consultation will take place before we initially specify national performance indicators and standards for best value and subsequently when we propose any changes to the order. I hope that the amendment, and the commitments given in the White Papers, in Committee and today will reassure Liberal Democrat Members of our commitment to consult on national performance indicators and standards for best value. I urge hon.Members to accept the amendment.

8 pm

Amendment No.46 would give the Audit Commission an effective veto over what the suite of performance indicators and standards specified by the Secretary of State would contain. It would cut across much of the purpose of clause 4 and undermine the wider consultation process that the Government will undertake before specifying performance indicators and standards. I urge hon.Members not to press the amendment to a vote.

Amendment No.64 would give the Secretary of State power to specify those bodies whose views he will have regard to when specifying performance indicators and standards. The Bill, as it currently stands, provides for the Secretary of State to have regard only to recommendations made to him by the Audit Commission. It is because of the commission's unique role in best value and its experience in monitoring local authority performance that it is included in clause 4(3)(b).Under best value, it will be responsible for auditing best value performance plans and undertaking best value inspections. It will retain a power, under the Audit Commission Act 1998, to set performance indicators. It will also have had considerable experience of setting performance indicators to monitor the performance of local authorities. The requirement for the Secretary of State to consult other organisations has been catered for by amendment No.6, and I hope that hon.Members will not see the necessity to press amendment No.64.

Amendment No.47 would require the Secretary of State to publish the reasons for his specifying any performance indicators or standard in a manner contrary to a recommendation received from the Audit Commission. We are considering the best way to publish the conclusions of the consultation process that we will undertake before the Secretary of State specifies national performance indicators and standards. However, I hope that hon.Members will understand why I do not warm to the amendment. The Government should say how they have reacted to the views of consultees, but that should not be limited to explaining their reaction solely to the Audit Commission's recommendations; it should also include the conclusions of other consultees. The Government will consider how best to put that into effect, and the debate will help us in those considerations.

With regard to amendments Nos.60, 61 and 62, we discussed performance standards at great length and in great detail in Committee. I hope that I can again reassure hon.Members about how performance standards will be applied and why they are important not only in driving up the performance of best value authorities, but also in providing the high-quality service that the public expect and deserve. The Government are committed to improving local services and ensuring that all people, no matter where they live, have access to, and receive, quality services. Standards and targets will be the key to achieving continuous improvements in service delivery.

The hon.Member for South Cambridgeshire (Mr.Lansley) suggested that we cannot maintain continuous improvement without sacrificing value for money. I invite him to discuss that idea with, for example, the British Retail Consortium, whose members know that unless they improve their service year on year and give value for money, they will go out of business. Standards and targets will drive up the performance of local authorities, and put most pressure on those authorities that are performing poorly.

Where there is a clear national requirement, such as new standards for educational attainment for different age groups, the Secretary of State or the National Assembly for Wales will specify the performance standards that an authority must meet. The White Papers on local government in England and Wales set out that the Government will take a clear lead in setting standards, and the Bill makes provision for that.

The Government do not intend to impose a large number of new standards.Our aim is to specify minimum acceptable levels of service provision in areas where the achievement of particular standards is clearly in the national interest. The Government will consult widely with local government and other interested parties on those areas in which standards will be set, and on what form they will take. The ability to set and change standards over time will be a key driver of improvement. That power will be used only where there is a clear national interest in setting standards. Standards will be relevant, necessary and appropriate for best value.

In some cases, they will arise from Government targets; for example, if the Government set a target that all authorities should achieve by 2003, all authorities should be performing at that level in 2003. That target might then become a standard to ensure that performance did not subsequently fall below that level. Future targets would ask for improvement above that standard. Standards and targets provide a mechanism for pegging existing levels of performance and ensuring the drive for continuous improvement in service delivery. For those reasons I urge hon.Members not to press the amendments to a vote.

Amendments to clause 14 are also included in the group. Clause 14 is an important part of the Bill and is vital to underpin the success of the best value framework. We realise that these provisions are powerful, but make no apology for that. We want to see all best value authorities making real progress towards continuous improvement and believe that the majority will do so. The enhanced system of audit and inspection will act as an early warning system and help to put best value authorities back on the right track in most cases where problems are starting. However, we need to ensure that we can tackle failure when it occurs. We structured the best value framework carefully to ensure that we will minimise the need for intervention, but there will be times when the Secretary of State or the National Assembly need to act, and there are plenty of precedents in existing local government and other legislation for such action being delegated to the Secretary of State.

Amendment No.5 would require that any direction issued under clause 14 must have secured the approval of the Select Committee on the Environment, Transport and Regional Affairs. That proposal is unacceptable; it would impose unnecessary time constraints on the process of intervention and would not enrich or enhance the process. It is not usual for Select Committees to scrutinise individual cases, and that would represent a significant extension of the Select Committee's current remit. It would be particularly inappropriate, and an overreaction, for the Secretary of State to need the Select Committee's consent to issue a direction under clause 14(2)(a) to (c), where the Secretary of State directs an authority to undertake a particular action, such as to prepare or amend a performance plan.

By deleting clause 14(8) and (9), amendment No.5 would also remove the provision, which we inserted by Government amendment in Committee, for the Secretary of State to intervene in urgent cases. As we said then, the Government believe that fast-track intervention is necessary to protect vulnerable groups or individuals.Yesterday, I was pressed by the hon.Member for Mole Valley (Sir P. Beresford) to say what we would do when, for example, there were serious problems in children's services and the process was not swift enough to protect children. Fast-track intervention will only occur in exceptional cases, where the severity or persistence—

Mr. Chope

Will the right hon.Lady give way?

Ms Armstrong

I certainly will.

Mr. Chope

The right hon.Lady talks about fast-tracking.Pill she explain why it has taken two years and two months for her Department to determine a footpath appeal involving St.Leonards and St. Ives parish council?

Ms Armstrong

rose—

Mr. Deputy Speaker

Order. The right hon.Lady will not answer that question. It has nothing to do with the amendments before us.

Ms Armstrong

I was trying to respond to the debate, Mr. Deputy Speaker, but as the hon. Gentleman had just walked into the Chamber, I probably should not have given way to him. I am trying to be fair, but that was not fair to other hon.Members; I apologise to them.

As I said, fast-track intervention is necessary to protect vulnerable groups or individuals. It will occur only in exceptional cases, where the severity or persistence of failure, or the continuing risk of harm or financial loss, show that urgent intervention is necessary. If those circumstances prevail and an authority could reasonably be expected to be aware of the problems but fails to take action to address them, the Bill provides the Secretary of State with the discretion to intervene without giving the authority concerned the opportunity to make representations about the report as a result of which intervention is proposed, or about the direction proposed. When intervening in that way the Secretary of State need not have regard to any statement of action produced under clause 9(2) but he will have to inform both the authority and its representatives of the intervention that is necessary, and give his reasons for using fast-track procedures.

Whatever the form of intervention, the Secretary of State will act according to the protocol on intervention, which, as the hon.Member for Torbay (Mr. Sanders) mentioned, is currently being discussed with the Local Government Association under the framework for central-local partnership. I am pleased to be able to report that we were able to proceed with this morning's meeting of the central-local partnership. That exercise will set out agreed principles and procedures underpinning intervention.

The Government believe that local democracy and accountability are important and that is why clause 14(3) gives the Secretary of State the power to direct the holding of a local inquiry in which the views of local people can be ascertained, where he believes that to be appropriate. Given that explanation and Opposition Members' comments yesterday on various aspects of the Bill, I hope that they will not feel it necessary to press the amendment. Amendment No.86 would delete the provisions in clause 14 relating to fast-track intervention. For the reasons that I have already given, I ask that it, too, should not be pressed.

Amendment No.49 would alter the fast-track provisions in clause 14 to allow the Secretary of State—or in Pales the National Assembly—to issue a direction under the clause before one month had expired, if he considered the direction sufficiently urgent.Unlike the existing fast-track provisions, which provide the Secretary of State with the discretion to issue a direction without complying with subsections (6) and (7) if he believes the case is sufficiently urgent, the amendment would allow authorities to retain the right to make representations about the report as a result of which the direction is proposed, and about the direction proposed. That could cause difficulties in extremely urgent cases.

The Government believe that it is important to work with authorities and to provide them with the opportunity to comment on the report and the direction proposed before intervention takes place. I made it absolutely clear in Committee that authorities will have the opportunity at each stage of best value to put their own house in order, and if they do so intervention will never be necessary. However, in cases of severe or persistent failure, where an authority is unwilling or unable to take action to address the failure, there may be a need to intervene very quickly. In such cases, there may not be time to allow authorities to comment on the report and direction proposed. The removal of clause 14(9), would mean that, when the Secretary of State took urgent action, he would not be required to inform the authority and its representatives of his reasons for doing so. I therefore request that hon.Members do not press the amendment.

8.15 pm

In respect of amendment No.88, we agree that, however urgent the case, it is important for interested parties to be kept informed. However, fast-track intervention could lead to a direction from the full range of possibilities, either where the responsibility for the function remained with the authority, or where it was taken over by the Secretary of State. The circumstances of the case would dictate who was best placed to ensure that interested parties were informed and, indeed, consulted as appropriate. In some cases, that might even be included in the direction itself. However, there would always be an immediate and practical need for the authority and its representatives to be kept informed and that is what the Bill provides for. I therefore consider amendment No.88 to be unnecessary.

If I understand correctly the reasons underlying amendment No.79 and it is indeed designed to ensure that only appropriate action is taken, I am sympathetic to its purpose. However, I do not accept that it is necessary. The powers in clause 14 to act in cases of failure are powerful and clearly need to be exercised with care. That is why we are in the process of agreeing with the Local Government Association and the Association of Police Authorities draft protocols that will govern the use of the powers in clause 14 in England. The Welsh Office will be developing a similar protocol with the Welsh LGA. The National Assembly will have responsibility for intervention in Wales and will want to discuss the draft in due course.

The draft protocol recognises that the form and extent of intervention should reflect the type and seriousness of failure and the need for effective improvement. It also recognises other important principles for example, that except in cases of urgency, the authority will normally be given the opportunity to make the necessary improvements itself. I cannot overemphasise the importance of that. However, I do not believe that it is necessary or desirable to make the amendment. In the first place, although I blame no one for it, the amendment is flawed in that it covers only those powers contained in clause 14(2), unlike the protocol, which will cover all the powers contained in the clause. Secondly, it is unnecessary, because the Secretary of State is bound to exercise his powers in a reasonable way and such decisions could be tested by judicial review. Again, I ask hon.Members not to press the amendment.

Clause 14(5) contains powerful provisions giving the Secretary of State the fullest means possible to ensure that serious and persistent cases of failure can be addressed to meet the needs of local people. As we have discussed already, any action taken would be in keeping with the nature and degree of failure. We expect that cases in which the Secretary of State takes over responsibility for exercising a function on behalf of an authority will be rare. In cases of persistent failure, it is likely that a range of measures will have already been tried. We recognise that, in the event of such powers being exercised, a range of parties would have an interest. We are giving consideration to the best way of ensuring that those with an interest are kept informed in the event of such intervention. Naturally, interested parties would include not only the authority itself and its representatives, but—crucially—employees, local people and users of the service.

Amendment No.48 is unnecessary, because there is no need for an additional provision on the face of the Bill to achieve its aim; the Bill already includes a provision for the Secretary of State to direct an inquiry to be held under section 250 of the Local Government Act 1972. Although we do not accept that amendment of the Bill is necessary, we recognise that, as the hon.Member for South Cambridgeshire said, amendment No.48 raises an important issue. I am happy to consider the matter further and the Government will report back at a later stage of the passage of the Bill.

In respect of amendment No.80, it is an extension of the principle of proportionality that the Secretary of State should not take over a function of an authority for longer than is necessary. That is recognised in the draft protocol, which describes the way in which the Secretary of State will monitor the function and consider whether the authority is in a position to resume and sustain effective responsibility for it.

It may be that the date by which the intervention will be terminated can be reasonably estimated from the outset. That is why subsection (5)(a) provides for a date to be specified in the direction. However, it must be recognised that intervention under subsection (5) is likely to be in the most serious circumstances. Although there must be a diagnosis of how the proposed intervention will help to address the failure, it may not be possible to determine how long it will take to put things right.

If there were a constraint on the Secretary of State to include a date in the direction, it would have no practical effect. It might merely lead to an artificial date being included. Nothing would prevent a further direction or series of directions being issued. It is better for all concerned for considered and timely monitoring to take place in accordance with the principles in the draft protocol.1 therefore urge hon.Members not to move amendment No.80.

Amendment No.77 would severely limit the circumstances in which intervention could take place. Not only would the Secretary of State's discretion to determine the circumstances in which intervention may take place be removed, but a requirement that intervention must be based on an Audit Commission report produced under clause 13 would be introduced.

By limiting the trigger for intervention to Audit Commission reports and excluding reports produced by other inspectorates, such as Ofsted or the social services inspectorate, the amendment undermines the work of these inspectorates and precludes their reports from having a major role in informing the process of enforcing best value policy.

The amendment would also remove the possibility of intervention being triggered by evidence which has emerged from other sources, such as public complaints. We envisage that intervention will in most cases be triggered by a report, but in some instances other evidence may be critical and might provide the basis for intervention. For example, evidence of serious public harm or risks to vulnerable groups may emerge from public complaints or a prominent event. In these cases it may not be desirable for the Secretary of State to wait for an inspection report to be produced before any action can be taken. Examples were given last night that exemplified the points that I am making. I therefore recommend that amendment No.77 should not be pressed.

Amendment No.78 presumes that all intervention under clause 14 will be based on an Audit Commission report, as proposed in amendment No.77. I have already explained why I think that is unacceptable. It is important that the authority concerned has the opportunity to make representations about any report as a result of which intervention is proposed. The Bill already provides for this under subsection (6)(a) in all but the most urgent of cases. I have explained why that provision is not appropriate in urgent cases. I therefore recommend that amendment No.78 is not pressed.

The aim of amendment No.81 is to require that a direction issued under clause 14 must always be based on a report and not on evidence that has emerged from other sources. However, the amendment would not have that effect. Instead, its effect would be that in cases where intervention is based on an inspection report, the authority would retain the right to make representations about the report. In cases where there is no such report, the Secretary of State or the National Assembly for Wales would still be able to issue a direction under clause 14, but would not need to allow the authority to make representations about this direction.

As I have mentioned, the Government believe that the Secretary of State should retain the ability to issue directions based on evidence emerging from sources other than reports and welcome the fact that the amendment does not secure that effect. It is a principle of the draft protocol that such evidence should always be clear. I hope that Opposition Members will withdraw amendment No.81.

It is important that the Secretary of State retains the discretion to determine when urgent intervention may be justified. As I mentioned earlier, the triggers for intervention may be reports from other inspectorates or evidence that has emerged from other sources. When the Government intervene in urgent cases, it will be to protect the interests of local people. By precluding certain sources from providing evidence which could justify fast-track intervention, amendment No.87 would limit the Secretary of State's ability to protect vulnerable groups from harm. I am sure that that is not the intention. I therefore hope that the amendment, along with the others which have been discussed in this complex and extensive group, will not be pressed. I will move Government amendment No.6 at the appropriate stage.

Mr.Paterson

As the Minister has rightly said, this is quite a complex set of amendments. I am grateful to her for taking such trouble to deal with the amendments one by one. I am sure that the right hon.Lady will agree that some interesting points have been raised during the debate. I am especially grateful to my hon. Friend the Member for South Cambridgeshire (Mr.Lansley), who made several valid points on the amendments with which he was particularly concerned.

I was pleased that the Minister at least recognised that clause 14 provides strong powers for the Secretary of State. There can be no disagreement about that. We still feel strongly that there is much nannying of local authorities inherent in the powers set out in clause 14 and in the Bill generally. I am disappointed that the right hon.Lady has not been able to accept our amendments, although I appreciate, as is always the way with these quite technical issues, that some of our amendments may not have had the effect that we intended. In some instances they may have had almost the opposite effect.

I am grateful for the right hon.Lady's specific assurances on Government amendment No.6. We intend to hold her and the Government to them in practice. If we are not to have more tightly drawn protections in the Bill, her assurances will stand proxy for them. We shall want to see how they work out in practice.

I was pleased with the right hon.Lady's undertaking on amendment No.48. That was very helpful. We look forward to hearing more about that in due course.

The Minister touched on the draft protocol. We have not had a major discussion of it, but it is in many ways an extraordinary document. As I understand it, the protocol attempts to set out how the powers will be exercised, and that it is in no sense legally binding. In the event of a dispute between central and local government, it will be interesting to see to what extent the courts will take it into account in coming to a conclusion. Again, as I understand it, there is no formal scope for parliamentary scrutiny of such a protocol. It is probably comparable with the concordats that are being established between Government Departments and the Scottish Parliament and the Welsh Assembly. It is similar to what I believe are called executive agreements in the United States. I think that it can be fairly described as a new form of executive action that is immune from democratic control.

Ms Armstrong

I hope that the hon. Gentleman will not pursue that point. If he did, he would be saying that local government should have more say over what happens to it. The protocol is being established with the Local Government Association and not between Government agencies. The association, too, has democratic accountability. The hon. Gentleman and his colleagues are responsible for holding the Government to account, but we want to move forward with local government. It was our intention anyway, but local government pushed for a protocol to be established. I hope that the hon. Gentleman will not associate himself with opposition to the principle of a protocol prevailing in these circumstances.

8.30 pm
Mr. Waterson

I am grateful for the Minister's intervention, although I did not particularly want to develop a substantial argument at this stage of our debate. The Minister said nothing contrary to my assertion that if there is a legal dispute, the protocol may or may not have any effect. I appreciate that we are in uncharted waters.Protocols and concordats are a relatively foreign import into our system and we must, perhaps, build up a body of experience and law before we can take a black and white view of them.

We can legitimately complain that the protocol was not made available earlier and more widely. However, it is an interesting concept.

If what was set out in the draft protocol is important and if, as I understand the Minister to be saying, it is necessary to define the Secretary of State's powers and, more precisely, how they are to be exercised, there is no reason not to specify in the Bill those restrictions on the Secretary of State's power and discretion. I shall not labour the point now—I suspect that we shall return to it in future.

I shall end on a happier note and repeat my gratitude to the Minister for dealing in such detail with all our points. We are sorry that she has not accepted our amendments, but we are grateful for the assurances and undertakings that she has given.On the strength of those, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No.6, in page 3, line 34, at end insert— ?() Before specifying performance indicators or standards the Secretary of State shall consult such persons as he thinks fit.'.— [Mr.Robert Ainsworth.)

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