Grand Committee Report of 23 June 2003

Official Report of the Grand Committee on the Local Government Bill
(Seventh Day)
Monday, 23rd June 2003.
The Committee met at a half past three of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): If any noble Lords want to take off their jackets, please feel free to do so.
Lord Bassam of Brighton: Thank you very much.
The Deputy Chairman of Committees: I remind noble Lords that there is no voting, that we speak standing and that there are no Divisions at all. If there is a Division in the Chamber—I believe that there will be—the noble Lord who is speaking should please come to the end of his sentence or stop and start his sentence again later so that we can adjourn the Committee for 10 minutes.
Clause 101 [Exercise of powers by reference to authorities' performance categories]:
Baroness Hamwee moved Amendment No. 203ZA:
Page 55, line 36, leave out paragraphs (e) and (f)
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 204A and 204B.
Amendment No. 203ZA would amend Clause 101—not "Room 101"—which is about the exercise of powers by reference to authorities' performance categories. We have already made it clear in our proceedings that my noble friend and I—we speak, I believe, for the whole of our party—do not regard powers and performance categories as being joined at the hip. We believe that categorisation, as distinct from assessment and review, is at best unhelpful.
Amendment No. 203ZA would leave out Clause 101(2)(e) and (f); in other words, it would remove power from the Secretary of State to have regard to the CPA category in authorising local authorities to undertake trading activities, as is set out in Clauses 96 to 98—that is the effect of paragraph (e). It would also retain fixed penalties for litter and dog fouling offences, which involves Clause 119, which is mentioned in paragraph (f).
I shall make a single point on each provision. To be able to trade and charge could give a real boost to a lacklustre authority. If it is proper for a local authority to he able to trade, it is proper for all local authorities to be able to trade. As regards Clause 119—the litter
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and dog fouling offences—do dogs in weak or poor authorities know that the authority in question cannot use the penalty income to provide bins or even wardens? The owners of the dogs might but the dogs do not. The powers should apply to all authorities.
Amendment No. 204A would leave out Clause 101(6)(a)(ii) and Amendment No. 204B would leave out Clause 101(6)(b). So if the Secretary of State uses his powers to amend primary legislation—I stress the reference to primary—he must do so for all local authorities, not just some and he must do the same as regards all descriptions of local authorities, such as unitary, county and district, not just some. I beg to move.
Baroness Hanham: I have some subsequent amendments but they do not relate to this point. I support the amendments of the noble Baroness, Lady Hamwee.
Lord Bassam of Brighton: We disagree on this point, part of which was debated on previous amendments. There is a clear division of opinion on the importance of performance assessments, the grading of local authorities and how they work.
Amendment No. 203ZA is unacceptable because it would mean that the Secretary of State could not grant freedoms or powers on the basis of the performance categorisation of an authority. Effectively, the granting of trading powers would not be linked to the authority's performance categorisation or culture. We find that unacceptable. Similarly, the Secretary of State need not confer on authorities extra functions on which they might spend their retained receipts from litter and dog fouling fines specifically by reference to their performance categorisation under Clause 100.
In England we intend to introduce the new powers for local authorities to trade as part of the new package of freedoms and flexibilities following a report from the trusted hand of the Audit Commission categorising authorities according to performance. We intend also to make available the new powers to councils judged "fair", "good" and "excellent". As a general principle, poorer performers should concentrate on providing essential services and not undertake trading activity. That is probably one of the key points and dividing lines between us. The granting of the new powers should be clearly and directly attributed to a local authority's performance.
Clause 119 will allow local authorities in England and Wales to keep their receipts from fixed penalty notices issued in respect of littering and dog fouling. The clause provides that all authorities may use such retained receipts only to finance their statutory functions relating to litter and dog fouling, plus any additional functions that the Secretary of State may subsequently set out in regulations.
Clause 101(2)(f) permits the Secretary of State to make regulations under Clause 119 in respect only of English local authorities coming within particular "performance categories", thereby allowing high performing authorities a greater freedom to spend receipts. The amendment would mean that the Secretary of State need not have regard to

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performance categories when making regulations under Clause 119, adding to the types of function that local authorities may finance using their receipts.
In England, it is proposed that a greater range of functions on which to spend receipts would be given only where the Secretary of State is sufficiently satisfied that local authorities' performance justifies it. That judgment would be based on an assessment of a local authority's performance. "High performing" authorities would be given greater freedom.
I hope that the noble Baroness will withdraw the amendment, and that she can see the value and importance of our developing and using the ratcheting-up of performance as a means of providing incentives to local authorities to do better and to desire greater flexibility.
Baroness Hamwee: As I said last week, the noble Lord knows well that, at any rate, his hopes will be fulfilled today under our Grand Committee procedure. I am no closer to understanding the Government's reasoning on this issue. I hear the words, but they still do not make sense to me—perhaps because I expect that people go into local government as both councillors and officers to do the best they can, not for reward. Over some time in local government, that expectation has broadly been fulfilled. It does not seem to me good psychology to suggest that extra powers, such as powers to keep the money from penalties imposed for dog fouling—which would then be used immediately and transparently to provide the kind of facilities that help to reduce the nuisance of dog fouling—will incentivise people. In fact, it seems to me that the very opposite might be the case—that one loses self-motivation, because the powers are imposed from the outside rather than relating to a measure that one is pushing oneself to achieve.
I have a further question to which we shall have to return on Report. Is it just because Clause 119 happens to be in the Bill that it is picked out to be dealt with in the way that we are discussing? Was a trawl done of local authority powers which might be given and then, as it were, hauled back?
Lord Bassam of Brighton: We shall have a look at that and find out.
Baroness Hamwee: I am interested to know how the matter has been approached. As I say, we shall return to the subject at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 203A not moved]
Baroness Hanhammoved Amendment No. 204:
Page 55, line 37, at end insert—
"( ) The Secretary of State shall, in accordance with the classifications provided for in section 100, ensure that the following reductions in inspection activity for all inspectorates are made so that—

(a) for authorities in the top tier of classification there shall be no external inspections during the period of the order made in section 100(4), and

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(b) for authorities in the next two tiers of classification there shall be a reduction in inspections of at least 50 per cent during the period of the order made in section 100(4).'

The noble Baroness said: In moving this amendment, I wish to speak also to Amendment No. 204C. Although the amendments are not directly related in context, they are related through the whole CPA regime.
Following the previous amendment, in introducing the CAP regime the Government justified it by claiming that it would lead to an overall reduction in inspection activity on the basis that local authorities engaged with the process. All of them were absolutely inundated with inspections.
But there are some worrying reports that although the Audit Commission may be willing to play ball. other inspectorates, such as Ofsted and the Social Services Inspectorate, are less willing to reduce their inspectorate activity. That may or may not be true, but the key point is that there should be a statutory agreement on the level of reduction in inspection activity for each class of authority. That would send a powerful signal from the Government to the local authority community that they mean business and will compel inspectorates to comply with their targets.
Setting statutory targets for reductions in inspection activity does not mean a less flexible system. It will still be possible to tailor individual inspection programmes to the needs of individual authorities. It does mean, however, that authorities will know in advance exactly how much inspection activity they can expect in the medium term. That would aid budgetary stability and forward planning processes for local authorities and would be welcomed. Indeed, not only that, it would save an enormous amount of officer time where authorities are considered to be either excellent or good.
That would deal with the inspection activity of the CPA, but I should like also to propose that. where authorities are considered to be good or excellent, it is about time that they were allowed to determine for themselves what structure they want to operate under. The new executive structures were set out in the Local Government Act 2000. There was much debate at that time over how those structures should be implemented. Indeed, there has since been much criticism in local government about the lack of flexibility and, to a great extent, the inability of BackBenchers in particular to take part in the decision-making process of councils.
The purpose of the amendment is not to suggest that one form of executive structure is better than another. It is not about turning the clock back. The amendment is about providing choice. It is about providing good or excellent authorities with the power to determine for themselves their internal governance structures. I concede that the Government might claim that it is not helpful for authorities to revisit their executive structures and that that would cause unnecessary upheaval when they should be concentrating on service delivery. However, that is precisely why we are opposed to the creation of elected regional assemblies

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and the constitution of the whole local government structure beneath the regions. Therefore, I do not disagree with the Minister.
It might he argued that the authorities themselves have axiomatically benefited from these executive structures. After all, they are good or excellent. Why, then, should anyone want to change what might be perceived as a winning formula? It is right for good and excellent authorities to judge such matters for themselves. They are in a position genuinely to consider the costs and benefits of changing their executive structures.
The main point is whether the Government trust local government to judge for itself whether its current structures are better or whether a committee-based structure is the better way forward. I believe that the Minister should recognise that how local authorities govern themselves is not a marginal issue. It was at the heart of the discussions on the previous Local Government Bill and it is certainly a debate that noble Lords will have on another matter over the next few months. The important point is not whether they exercise that freedom, but whether They have the power to exercise it. Do local authorities have a choice? I beg to move.
3.45 p.m.
Lord Bassam of Brighton: This is an interesting grouping with two distinct sets of issues; one concerns the inspection regimes and the other systems of governance. It is an eclectic group.
I am not in sympathy with the substance of either of the amendments. The first one is flawed because, as I believe I said in an earlier discussion, tiers as a concept does not exist in statutory terms. While we expect the Audit Commission to categorise authorities—that will range from excellent to poor—it does not need to and may adopt some other formulation in the report it must provide to the Secretary of State under Clause 100(1).
Amendment No. 204 is designed to reduce inspections in the next two CPA categories classified as "excellent" by at least 50 per cent. However, we have announced that we want to see radical reductions—we have made it clear enough—in inspection activity for the best councils. The introduction of a risk-based approach to inspection should also lead to reductions for other councils in terms of the categorisation. We believe that that is best based on the strengths and weaknesses identified through the CPA process. We are moving towards what may be described as a more strategic inspection regime. I am sure that that is welcomed in local government and I recognise it as being a more valid way of proceeding.
I do not believe that there is much between the noble Baroness and ourselves about the value of external scrutiny in terms of driving up performance. That said, we recognise that unco-ordinated inspection activity can place unnecessary burdens on local authorities. That is why inspectorates are committed to a risk-based approach and are working through the Local Services Inspectorate Forum to deliver a co-ordinated
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and proportionate inspection programme. It needs to be put on the record that Ofsted, social services and, it goes without saying, the Audit Commission are signed up to that process, as I am sure the noble Baroness is well aware.
The forum is also developing a public database that will show inspection activity in each council by all the main inspectorates. That database is expected to go live in the next month. It will provide clear evidence of the co-ordinated activity of the inspectorates and the pattern of inspection by type of council and CPA category. I believe that that will be a useful tool for us to see a better pattern.
In our view Amendment No. 204 would replace this effective process with an unworkable and prescriptive approach. It is obvious that 50 per cent is a target in itself and I am not sure that it is the right target. I do not know what the right target is, but I believe that having a co-ordinated and a more strategic approach to inspection is a better way of operating.
We believe that it is right for the Government to set out a clear policy for risk-based and proportionate inspection programmes for local authorities. But it is also right that the inspectorates, with their statutory responsibilities and their necessary independence, should retain the flexibility to respond to the risks that they identify. That is much more difficult to do if one sets a target, because one is boxed in by its constraints.
Amendment No. 204C would amend Section 11 of the Local Government Act 2000 in order to remove the need for authorities classified as "excellent" or "good-to operate an executive form of governance. There is not a great deal of difference between the views of the noble Baroness and the Government on this. She recognises the importance of having an executive decision-making function at the heart of good local authorities. It is certainly the case that the better local authorities, prior to the 2000 Act, had an executive corps in operation.
The noble Baroness touches on one important issue—the role of back benchers in local authorities. There will always be grumbles by back benchers that they are excluded from making the main decisions—or certainly there always were in my time as a local authority leader—even though that was not actually the case. However, we need to make more use of all members, and the more streamlined structure does not preclude that possibility. In particular, back benchers have a very important role in scrutiny. They are very much the footsoldiers in representing their communities. Those two roles make for a very vibrant situation in most local authorities.
The new executive arrangements or streamlined committee systems introduced throughout the country enable us to have a better edge in creating more efficient, transparent and accountable local authorities. We do not support the idea, promoted by the amendment, of providing an opt-out arrangement for authorities that do not want the more streamlined approach. That would defeat the purpose of the reforms, which local authorities have in the main

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begun to implement, and would take us back to the days before we had streamlined and more executive functions in local government.
The proposal would also undermine the valuable improvements gained as a product of the changes. Although at the outset there were some complaints about elements of the new system, they have become much more accepted as they have begun to work through. The new political arrangements are linked inextricably to the work that authorities are doing to become more efficient and to provide the sort of political and community leadership that local authorities should provide. Moving backwards would be a retrograde step, which we and the consumers and customers of local authority services would regret. I believe that the noble Baroness shares that view, because I know that in her own party she has argued for modernising local government and for making it more accessible, accountable and understandable.
I hope that with those words of persuasion, the noble Baroness will not only withdraw today but also not press her amendments at a later stage.
Baroness Hanham: I thank the Minister for his reply. Like him, I was slightly bemused by the grouping. I know that I could have had a hand in de-coupling, but it somehow escaped my notice that the amendments had been placed together.
The main thrust of Amendment No. 204 is to try to ensure that, if CPAs mean anything, good local authorities in particular are let free to do what they need to do on the spot. There has been a real feeling of burden from the inspection regime that has been established. I am marginally encouraged by the Minister's suggestion that the regime is about to be rationalised—or at least that information will be taken on board about how many inspections there are against local authorities, and their outcomes. I am slightly encouraged by that, although I am not sure that I am encouraged enough to promise the Minister that he will never see this amendment again. However, I thank him for his explanation.
I did not expect to get any more than the response that I got to Amendment No. 204C. There has always been a difference of view on what modernisation of local government would bring about. There are still very real concerns about the magnificent powers of the few executive members and the rather paltry, if not non-existent, powers of back benchers. At least when a chairman had to consult members and ask for their support on a matter, they felt involved.
Noble Lords: Division!
Baroness Hanham: I suppose that noble Lords want me to stop.
Lord Bassam of Brighton: Or withdraw the amendment.
Baroness Hanham: No—I could spend a bit more time on the amendment and finish what I was going to say.
[The Sitting was suspended for a Division in the House from 3.55 to 4.6 p.m.]
Baroness Hanham: I want to discuss a little further the matter of what back benchers on local authorities actually do and whether they see the current executive arrangements as beneficial to them. Although one might say that the back benchers do not much matter, they represent the future of local government. If they are not thoroughly involved in and committed to what is being done, then the following stages along the line of those who should become executive chairmen become far more difficult to recruit.
It is difficult for councillors to try to pretend that they are taking part in major decision-making when they are not doing so. Certainly, as they come into local authorities, one of the roles of back benchers is to play a part and ensure that what happens in their local area is something which they understand and can influence. However, some of the reports coming back from councils would suggest that back benchers are finding it quite hard to find for themselves a role.
Although I am not going to take the amendment any further, I might pursue it at a later stage. It has been designed to try to ensure that the maximum benefit is derived from those elected to serve on local authorities. Most authorities have at least 60 councillors, of whom 10 are executive members, while on most councils the same number again have a role to play, but not a decisive one. It is those people whom we need to be concerned about, not the executive members who are coining in handsome sums of money as leaders of their executive groups and who, as a consequence, may not be as bothered about the problem as I believe are others.
As I have said, I shall not take this any further today, but it is possible that I shall return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 204A, 204B and 204C not moved.]
[Amendments Nos. 205 to 209 had been withdrawn from the Marshalled List.]
Clause 101 agreed to.
Schedule 3 agreed to.
Clause 102 [Staff transfer matters: general]:
Baroness Hanhammoved Amendment No. 210:
Page 56, leave out line 30.
The noble Baroness said: Clause 102 and, to a lesser extent, Clause 103 are designed to give effect to the revised statutory guidance on best value and performance improvement, Annex D of which is a code of practice on workforce matters and local authority contracts. Basically, these elements of the Bill, along with the guidance, seek to require local authorities to build their standard terms and

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conditions of employment into the specification for every tender for a service contract, and to treat the contract as if TUPE applied, whether or not in reality it does so.
While Clause 102(1)(b) requires only that local authorities should have regard to the new best value guidance, Clause 102(1)(a) requires them to comply with directions given by the Secretary of State, referred to in the Bill as "the appropriate person". Presumably those directions could be designed to ensure that local authorities comply with the requirements of the code, including building in standard local authority terms and conditions of employment. Such a direction would mean in effect the end of any market-force pressure on a contract because wage rates and terms and conditions would become standardised at current local authority rates.
The question here, therefore, is what the Government intend to do if Clause 102 were accepted. Under the 1981 TUPE regulations, whether or not current terms and conditions are transferred to the successful contractor depends on a detailed analysis of the facts to determine whether the business in question retains its identity after transfer. For example: have tangible assets such as buildings, plant and equipment been transferred; have the majority of employees have been taken over; have clients been transferred; and what is the degree of similarity between activities carried out before or after transfer? Thus, under the regulations, sometimes a transfer takes place and sometimes it does not.
As presently structured, Clause 102 provides that the Secretary of State could direct that there should be a transfer—indeed, he might always do so. As a consequence there would always be a transfer when a local authority contracts out, thus undermining the rationale and reducing the benefits or competitor contracting.
The amendment would also remove the possibility of the Secretary of State directing that contractors should provide a broadly comparable pension to that provided by local authorities. It is not clear why such a direction might be needed since already There is scope for some changes to be made by amending the TUPE regulations. However, any such considerations would need to be subject to detailed consultation because the whole area of pensions has become such a minefield.
Until now there has been no need for direction on either of these matters and local authorities do not believe that there is any need for or any argument in favour of interference in the labour market. I beg to move.
Baroness Hamwee: My Amendment No. 210ZA is in this group.
Clause 102(6)(b) provides for the directions or guidance issued to be,
"different for different cases or authorities".
We have addressed previously the extent to which it is proper for differences to be recognised.
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Authorities of different descriptions—which I understand to mean unitary, county, district or parish authorities—are one thing; but different "cases", different authorities in the same category, seems to be quite another. My amendment states that, in so far as there are differences, that will be the case only,
"to the extent that differences are required and without distinguishing between cases or authorities in the same category.
4.15 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): Amendment No. 210 would render Clauses 102 and 103 unworkable. The amendment appears innocuous, seeking as it does to remove the ability of the appropriate person—whether this be the Secretary of State in England, the National Assembly for Wales, or Scottish Ministers—to issue "directions" to require best value authorities, in contracting with other persons for the provision of services or in circumstances where a contracted-out service is brought back into the public sector on the termination of a contract, to deal with staff transfer matters (employment or pensions) in accordance with any directions made. In the absence of any power to issue directions—which would be the effect of the amendment—Clause 102 would be reliant on the guidance power set out at Clause 102(1)(b).
Clauses 102 and 103 have resulted from the review of best value which was established to find ways to improve the quality of local services while ensuring fair treatment for employees working on local authority contracts. As part of a package of workforce measures following the review of best value, the Government committed to legislate to make statutory within local government the provisions in the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector and the annex to it, A Fair Deal for Staff Pensions. This will ensure that local government contracting exercises, including re-tendering, are conducted on the basis that "TUPE" should apply unless there are genuinely exceptional reasons for it not to.
It will also make clear that local authority transferees will be offered either ongoing access to the local government pension scheme or access to a broadly comparable scheme provided by the contractor. The direction-making power is needed to deliver the commitment that we have made.
The amendment, in taking the teeth out of the provision, would effectively mean that there would continue to be a risk of cases arising where local authorities transfer staff to the private sector without the application of TUPE or the provision of a good-quality pension scheme. It would mean that good contractors with high employment standards could be undercut by those willing to abuse the system. That has been the story of the ages. The sweatshops will always undercut the good employer. That is why fair wages and rules on fairness are necessary. The guidance, on its own, is not an effective substitute for directions and could not achieve the same effect.

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Clauses 102 and 103 as drafted will ensure that when best value authorities select private or voluntary sector partners it will be on the basis of their ability to deliver high-quality services. It will not be on the basis of contractors being able to undercut quality providers, cutting costs through driving down staff terms and conditions. It will also remove the fear of transfer for those employees affected by local authority outsourcing and provide them with the same level of protection that is currently enjoyed by those working in central government and its agencies.
Amendment No. 210ZA relates to Clause 102(6) which requires best value authorities in England and Wales, or relevant authorities in Scotland, when engaging in contracting-out exercises, to deal with staff matters in accordance with directions.
The amendment seeks to ensure that if different directions are issued for different cases or authorities, the differences are restricted to those required and should not distinguish between cases or authorities in the same category.
The aim of Clause 102(6)(b) is to allow for different directions to be issued to different types of best value authorities. Best value authorities are a heterogeneous group, covering a range of general purpose councils from the very large to the small. They also include a variety of single-purpose authorities, such as police, parks authorities and waste disposal authorities. For directions to be workable, they need to be tailored to the particular circumstances.
The use of this power will, of course, be subject to the usual requirement of administrative law that the powers conferred must be exercised reasonably and not for some improper purpose. We intend to comply with those normal constraints and certainly do not intend to use the powers in a discriminatory manner. But restricting differences to what is "required'', and without any definition of that term, might potentially prevent sensible changes to take account of local circumstances. In particular, it might prevent differences being made that all are agreed are beneficial but which are not strictly necessary.
There is no ulterior motive in drafting the clause in this way. As I have stated, it carries out a commitment that the Government made following consultation on the Cabinet papers. In view of the explanations offered, I hope that the noble Baronesses will not press their respective amendments.
Baroness Hamwee: I am sure that the Minister understands that we are seeking not to challenge the good faith of current Ministers but to make the discretion as tight as it should be. I take his point about administrative law requiring reasonableness but, clearly, I cannot pursue that further today. I still have an uneasy feeling that we have a duty to pin things down as much as we can but that we have not been very successful in that regard today. I take his comments on board.
Baroness Hanham: I was fascinated by the Minister's response because he did not deal at all with one of the main points that I raised; that is, the whole
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question of how local authorities undertake competitive tendering under those circumstances. Seventy-five per cent of the costs of any business involved in local authority work are, by and large, staff related. There will be no possibility, if every contract must be tendered under local authority terms and conditions, that local authorities will be able to get any meaningful reductions in their expenditure.
The Minister also suggested that a contract that was not carried out under TUPE led to a lack of quality and service. I should be glad to see any written evidence that he has on that rather than anecdotal evidence. The experience of those of us who have had anything to do with competitive tendering is that, by and large, the service improves dramatically and the staff, by and large, also do so, even if they are transferred without TUPE conditions.
In this context, we have a sledgehammer to crack a nut. The situation has not, so far as I am aware, been badly abused. The TUPE regulations have applied since 1981 and competitive tendering in local authorities and the health service has taken place since then. It is curious at this stage that some commitments have been made that no one appears to be very clear about to alter the whole theory on TUPE—that is, that it sometimes applies under certain circumstances and sometimes does not.
Pensions is another fraught area. Before any direction was given by the Secretary of State in this regard, we should be clear that far more consultation than is envisaged in the Bill is necessary. As we all know, a pension is the one thing that people are most concerned about, apart from having a job to continue in. Their pension is of particular concern to them. There should be far more consultation on and discussion about that than appears possible under the Bill, under which the Secretary of State will simply give some directions.
We will return to this issue. The whole question of the code of practice is a concern.
Lord Rooker: I want to put a couple of points on the record about that before the noble Baroness concludes. I have not come with a list of horror stories from the 1980s and 1990s, but I could have done. I could have brought a list of cases in which compulsory competitive tendering was imposed on local authorities and the only way in which people could win bids was by cutting the wages and pensions of the workers who were transferred. That was the way that it worked. I have seen documentary after documentary about what happened in the health service and local government.
Best value is not like that; that is part of what we are trying to solve. We want to introduce good-quality services but not at the expense of cutting the pension provision of the employees concerned. The noble Baroness made my case for me; she said that pensions were the one thing that people were concerned about. They were not looked after in the 1980s when CCT was first brought in; it was not a key element, although it is now. I was very pleased by those comments.

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I also take the noble Baroness's point that if 75 per cent of costs are staff costs and pensions, one wants entrepreneurs to look for other ways of making savings and introducing efficiencies. I completely accept that. There has been much consultation on the matter. The Local Government Association encouraged local authorities to operate the Cabinet Office statement on the practice of transfers, as one would expect. It is certainly not against bidding successfully against competitors. That was part of the problem in the past: it was not prepared to undercut wages and pensions but others were. That is why the situation has changed.
Baroness Hanham: I hear what the Minister says. The approach could make the whole process so prescriptive that it will effectively drive a coach and horses through the possibility of anyone being able to achieve any benefit from competitive tendering. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 210ZA not moved.]
Baroness Hamweemoved Amendment No. 210ZB:
Page 57, line 9, at end insert—
"( ) shall be the subject of consultation wit h representatives of authorities and of staff before they are issued"
The noble Baroness said: If the amendment is not acceptable to the Minister, I hope that lie will at least welcome the fact that I should be able to move it in a minute and a half.
We are back to Clause 101(6) and the different directions and guidance that may be given to different categories and so on. I propose that they should be,
"the subject of consultation with representatives of authorities and of staff before they are issued".
In other words, I seek an assurance that there will be consultation. I hope, as has happened previously, that the Minister will respond with the assurance, "Of course". I beg to move.
Lord Rooker: I believe that I can satisfy the noble Baroness on the basis that I will argue that both halves of the amendment are unnecessary because what she seeks will happen anyway.
Briefly, the first half of the amendment seeks to ensure that directions are the subject of consultation with representatives of local authorities. However, in 1997, the Government, along with the Local Government Association, signed a commitment known as A Framework for Partnership, which set up a framework for the conduct of relations between central and local government. My experience, rolling round the ministries, is that relations, contacts and partnership arrangements between central and local government are better than they ever have been in the past 30 years. Included in that framework was an agreement that there should be full and effective consultation between central and local government on all matters of common concern, with the exception of matters relating to national security. We accept the need to have regard to the views of local government; there is a firm commitment to consultation.
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The second half of the amendment seeks to ensure that directions are the subject of consultation with staff or their representatives. I submit that that, too, is unnecessary. The provisions originate from the package of measures that we announced following the review of best value. The review was taken forward by a group which included representatives of trade unions, private and voluntary sector service providers, local authorities and the Audit Commission. We intend to take the views of all those parties into consideration when we finalise directions. I hope that in view of my explanation, the noble Baroness feels assured that what she seeks will indeed happen at the relevant time.
Baroness Hamwee: I thank the Minister for that. I maintain, as I did in relation to previous amendments—I daresay that there may be some more to come—that there is value in getting things included in legislation, which may well last a good deal longer than a code of practice that is entered into by a particular government. That is why we moved the amendment and will continue to move similar amendments in order to make that point. I am grateful to the Minister for his assurances and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 agreed to.
4.30 p.m.
Clause 103 [Staff transfer matters: pensions]:
Baroness Hamweemoved Amendment No. 210ZC:
Page 57, line 44, leave out sub-paragraph (ii) and insert—
"( ) are no less favourable than,"
The noble Baroness said: I shall speak also to Amendment No. 210ZD. UNISON brought these matters to our attention. It is not complaining about the substance of the clauses; it welcomes them very much. The amendments would tidy up some points.
Clause 103 deals with pensions when staff are transferred. Subsections (2)(b) and (5)(b) of Clause 103 require that pension protection is "the same as" or counts as being "broadly comparable to" or "better than" before. I acknowledge that "better than" is very good and welcome. However, "broadly comparable" means that the terms need not necessarily be as good as before. The definition of pension protection states that, in any event, what matters is how the terms count under the directions given by the appropriate person. The amendments seek to ensure that existing pension conditions are not welcomed.
I understand from UNISON that there have been problems in practice. The local government pension scheme that applies at present is at the minimum standard needed to allow retired people to live above the poverty line. I am trying to be objective and not introduce too much emotion. Any provision less than that would result in people being dependent on benefits.
The current TUPE regulations do not protect the pension rights of transferred staff. The only measures are in the Government's guidance in Cabinet Office

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Statement on Staff Transfers in the Public Sector, which was issued three years ago. It recommends using the same terminology: that public bodies should ensure that there are "broadly comparable" pensions for TUPE transferred staff.
UNISON states that evidence shows that contracted-out staff sometimes means inferior pensions; for example, employees not achieving bulk transfer of tasked service, and transferred employees receiving a money purchase pension scheme rather than a final salary pension scheme—that is quite topical. Another example is changes detrimental to the transferred employees as made during the contract. Also, "broadly comparable" pension schemes are often capped.
I understand that recently the Government agreed changes to the Cabinet Office code of practice on workforce matters, which was published recently. That included the phrase "no less favourable" rather than "broadly comparable" as the appropriate phrase. I beg to move.
Lord Rooker: The noble Baroness is quite right about the origin of the amendments. I understand that they were tabled on Report in another place but were not debated. It is therefore right that the amendments are moved now so that we can place an explanation on the record. As I said to officials this morning, I have taken part in this debate before. I have a feeling that the issue arose in the Police Reform Bill, where there was an explanation of the differences in the terms. In a moment, I shall describe those terms as an art-form among the pensions cognoscenti—do not ask me to spell that word.
The amendments reflect concerns over the term "broadly comparable" in an earlier draft code of practice for new joiners to outsourced workforces, which was published in final form on 13th March. The term "broadly comparable" in the draft code of practice was replaced with "no less favourable" in the final version.
However, the use of the term "broadly comparable" in the context of the Cabinet Office statement of practice, and thus in this clause, does not compare with the use of the term in the draft code. There are two reasons for that. First, the term "broadly comparable" in the clause refers to pensions and is a term of art that is narrowly defined and widely understood among pension providers, pension lawyers, et cetera. The term as used in the draft code of practice did not relate to pension provision, but to non-pension pay and conditions.
The amendments would modify a well-used policy statement that is currently securing pension protection across the public sector generally. They would create uncertainty, as they would signal a test different from the actuarially defined "broadly comparable" level of pension benefits, but without specifying what the new test would be. They might also prevent contractors from providing alternative pension schemes offering benefits of a similar value, even though those could be better suited to the needs of the staff and the contractor.
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We intend that transferees in local government should all enjoy the same level of pension protection and be offered either retention of the local government pension scheme or a broadly comparable scheme. There is an issue of terminology in calculating and transferring pensions. Pension specialists and actuaries use a whole new bibliography and language. The amendments would create confusion, as the terms used in pension provision are very narrow and widely understood.
Baroness Hamwee: I am grateful for that. As a lawyer I can say that, although the term is widely understood by lawyers, the lawyers should change their practice and let people who speak straightforward English continue to do so and not have such explanations. I suspect that the Minister might agree. I am neither a pensions lawyer nor an actuary, so I am not qualified to take the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 210ZD not moved.]
Clause 103 agreed to.
Baroness Hamweemoved Amendment No. 210ZE:
After Clause 103, insert the following new clause—
"STAFF TRANSFER MATTERS: TERMS AND CONDITIONS OF EMPLOYMENT
(1) The appropriate person shall exercise his power to give directions under section 102(1) so as to secure that where a local authority is contracting with a person ("the contractor") for the provision of services that are to be provided under a contract instead of by employees of the authority, it does so on terms—

(a) that require the contractor, in the event of there being any transferring employees, to secure the protection of terms and conditions of employment for each of them, and

(b) that, so far as relating to the securing of the protection of terms and conditions of employment for a transferring employee, are enforceable by the employee.

(2) For the purposes of subsection ( 1 )—

(a) "transferring employee" means an employee of the authority whose contract of employment becomes, by virtue of the application of TUPE regulations in relation to what is done for the purposes of carrying out the contract between the authority and the contractor, a contract of employment with someone other than the authority, and

(b) "protection of terms and conditions of employment" is secured for a transferring employee if after that change in his employer he has, as an employee of his new employer, rights to terms and conditions of employment that—

(i) are the same as, or

(ii) are no less favourable than,

those that he had as an employee of the authority.
(3) The appropriate person shall exercise his power to give directions under section 102(1) so as to secure that where—

(a) a local authority has contracted with a person ("the first contractor") for the provision of services,

(b) the application of the TUPE regulations in relation to what was done for the purposes of carrying out the contract between the authority and the first contractor resulted in employees of the authority ("the original employees") becoming employees of someone other than the authority, and

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(c) the authority is contracting with a person ("the subsequent contractor") for the provision of any of the services, the authority contracts with the subsequent contractor on terms satisfying the requirements of subsection (4).

(4) Those requirements are that the terms—

(a) require the subsequent contractor, in the event of there being any transferring original employees, to secure the protection of terms and conditions of employment for each of them, and

(b) so far as relating to the securing of protection of terms and conditions of employment for an original employee, are enforceable by the employee.

(5) For the purposes of subsection (4)—

(a) "transferring original employee" means an original employee—

(i) whose contract of employment becomes, by virtue of the application of the TUPE regulations in relation to what is done for the purposes of carrying out the contract between the authority and the subsequent contractor, a contract of employment with someone other than his existing employer, and

(ii) whose contract of employment on each occasion when an intervening contract was carried out became, by virtue of the application of the TUPE regulations in relation to what was done for the purposes of carrying out the intervening contract, a contract of employment with someone other than his existing employer;

(b) "protection of terms and conditions of employment" is secured for a transferring original employee if after the change in his employer mentioned in paragraph (a)(i) he has, as an employee of his new employer, rights to terms and conditions of employment that—

(i) are the same as, or

(ii) are no less favourable than,

those that he had before that change.
(6) In subsection (5)(a)(ii). "intervening contract" means a contract with the authority for the provision, at times after they are provided under the contract with the first contractor and before they arc to be provided under a contract with the subsequent contractor, of the services to be provided under the contract with the subsequent contractor.
(7) Any expression used in this section, and in the TUPE regulations, has in this section the meaning that it has in the TUPE regulations.
(8) In this section—

"local authority" means a local authority for the purposes of section 1(1)(a) of the Local Government Act 1999 (c. 27) (local authorities in England and Wales that are best value authorities);

"the TUPE regulations" means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794), or any regulations replacing those regulations, as from time to time amended."

The noble Baroness said: The explanation of this amendment can be briefer than the proposed clause. The Bill does not provide for the preservation of transferred workers' terms under the same principle as pensions. The matter was raised by UNISON. It states that evidence shows that the TUPE regulations can provide only temporary protection of terms and conditions, which can be eroded, sometimes over quite a short period.
UNISON has given me the example of a local authority that contracted out four of its elderly people's homes to a not-for-profit organisation. The organisation transferred all the ex-council staff on to
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its own terms and conditions a couple of years later. That meant a loss of 60 per cent of gross pay because of a reduction in the hourly rate, reducing it to the minimum wage level. There was a reduction in holiday entitlement, sickness payments and so on.
The proposed new clause would require local authorities to secure in the contractual agreements with contractors that the terms and conditions of transferring employees are "the same as" or "no less favourable than" those they enjoyed as an employee of the authority. The provision would apply for the life of the contract and to subsequent employees who take over the contract. UNISON believes that those measures should be in the Bill rather than left to guidance or directions. I beg to move.
Lord Bassam of Brighton: This amendment was tabled on Report in the House of Commons but was not debated, so this is the first opportunity to explain briefly the Government's position. The new clause attempts to make the same provision for TUPE transferees in relation to terms and conditions that we have already made for pensions.
The specified terms and conditions benefits are that they should be the same as, or no less favourable than, those enjoyed as an employee of the authority. But since the new clause defines "transferring employee" by reference to that employee being a TUPE transferee, it adds nothing, because TUPE already preserves non-pension terms and conditions for transferees.
TUPE does not transfer pension rights, which is why the Government have made particular provision for pensions in the Bill. I hope that that explanation satisfies the noble Baroness. We understand the point about preserving no less favourable terms and conditions for the life of the contract. However, we are not clear how the amendment would achieve that. It seeks only to require that, after the change in his employer, an employees has a right to no less favourable terms. That is already secured by TUPE. Continuing rights to terms and conditions, for example, over the life of the contract that are no less favourable than at transfer would still depend on TUPE and general employment law, in any event. I hope that that covers that the noble Baroness seeks to clarify.
Baroness Hamwee: I do not know whether it answers the point about subsequent contractors after a TUPE transfer. Proposed subsection (4) requires the subsequent contractor to secure the protection of employees' terms and conditions.
Lord Bassam of Brighton: It covers a subsequent transfer.
Baroness Hamwee: That raises the question of how the problems to which I referred arose. Again, I am not sure that I can take the matter further. At any rate, discussing the matter at this stage has made me all the more interested. I shall make some enquiries. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanhammoved Amendment No. 210A:
Before Clause 104, insert the following new clause—
"LOCAL ELECTIONS: PILOT SCHEMES
In section 10 of the Representation of the People Act 2000 (c. 2) (pilot schemes for local elections in England and Wales), after subsection (12) there is inserted—
"(13) An order under subsection (1) which contains provision modifying or disapplying any enactment shall be made by statutory instrument and shall not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of both Houses of Parliament.
(14) Any other order under subsection (1) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.""
The noble Baroness said: The amendment would ensure that election pilot schemes with—which we are becoming familiar—are enacted only by an affirmative statutory order. It is our view that changes to the electoral system should be subject to parliamentary scrutiny, particularly as there is public concern about the operation of some of the pilot schemes.
In May's local elections, 60 councils were given approval by the Government to engage in non-traditional ways of voting—the first-past-the-post system. That covered more than 6.5 million voters. There are indications that the Government intend to make even greater use of such pilots in future elections. Despite almost 6.5 million voters being affected by the schemes, there is no parliamentary scrutiny, as, under the Representation of the People Act 2000, the orders are not subject to parliamentary decision.
The Electoral Commission, which reported in 2002 on the schemes and will also do so for those in 2003, has no power to see that its recommendations are implemented. At least parliamentary scrutiny would enable its views to be taken into account.
We well understand, and share, the concern about voter apathy and the need to encourage electors to turn out. But there are concerns about every form of voting other than an actual presence in a polling station, and a controlled postal voting system working in conjunction with that, but as a minor element. All postal votes have demonstrated an ability to increase voter turnout slightly. But the requirement for a countersigned witness declaration for that postal vote has been removed, consequently leaving room for abuse. There is concern about votes lost in the post or misdirected, either not received by the person who is meant to be voting or not received on return.
The Electoral Commission has raised concern about the extension of voting hours and the cost involved. E-voting is potentially open to abuse and gives rise to concerns about security issues, such as PIN numbers being sent by insecure means. The whole question of non-traditional voting methods and their success is still subject to much conjecture. It is important, therefore, that their progress is not only monitored by Parliament but authorised by it—something which has not happened up till now and therefore seems to us to be something which ought to be included in this legislation. I beg to move.
4.45 p.m.
Baroness Blatch: I support what my noble friend has just said. Frankly, I should have thought that the Government would be sympathetic to my noble friend's amendment. There has been enormous disquiet about the probity and security of such experiments so far. In some areas investigations are still continuing. What is paramount is that the electorate at large should have confidence and trust in any system under which they are expected to elect government, whether local or national. My noble friend has made a powerful point. I hope that her amendment will at least be received with sympathy, if not accepted.
Lord Bassam of Brighton: To pick up the final point made by the noble Baroness, Lady Blatch, the amendment is received with sympathy and perhaps even with a degree of understanding. I, too, was a local councillor. I remember expressing enormous disquiet at what seemed to me rather dubious practices by one of the opposition parties in my authority during a by-election and having those concerns quite properly addressed.
But there is a difference between that and what I believe the noble Baroness suggests as a remedy. We believe that pilots are important, but the amendment would severely and needlessly restrict the ability of local authorities to hold electoral pilots and test out voting innovations. Perhaps that is what the noble Baroness wants—but I cannot believe that it is, as she supports innovation in this field.
The amendment would effectively require any statutory order to permit an electoral pilot scheme to be laid before Parliament and to be subject to the affirmative resolution procedure. Let us think through what that would mean.
Elections are regulated by detailed legislative codes. Any departure from those codes would require a modification to the relevant legislation. Indeed, if no change to legislation were required, there would be no need for an order. Therefore, in that sense the amendment is partially misconceived, as it is more or less impossible to envisage a potential order to which the proposed new Subsection (14), and hence the negative resolution procedure, would apply.
The timetable for holding elections, let alone pilot elections, is a tight one, particularly in the case of by-elections. If the statutory order required for local authorities to hold pilot elections required parliamentary scrutiny, the process would become cumbersome and extremely time consuming. I argue that there is not much freedom or flexibility in that.
In relation to by-elections it would prevent the holding of pilots at all, as it would in practice be impossible to make the order within the time-scale for holding the election. In some ways by-elections are a good opportunity to conduct pilots. The details of the pilot elections established by the statutory orders are decided by the local authorities that are to hold them, so there is a level of local democratic accountability for the operation of election pilots.

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It is important to bear in mind that these orders do not amend legislation on a permanent basis but only in relation to the particular election. I do not therefore consider it appropriate to apply a parliamentary procedure to them.
Should any proposal which has been piloted be taken forward to he made available on a more general basis, that would require further legislation subject to appropriate parliamentary procedures.
The aim of the Representation of the People Act 2000 was, in part, to facilitate the process of electoral modernisation. We have achieved that in large degree. Turnouts, particularly in local elections, have increased considerably. If we consider the all-postal ballot elections that were conducted in the most recent set of elections, we can see that there were very significant increases in some areas, pushing election turnouts well over the 50 per cent mark. I think we all agree that that is desirable. It may potentially enfranchise people who feel that the current system disenfranchises them.
I argue that the amendment would be self-defeating. It would undermine the use of pilots and undermine the modernisation process. What we need to do is to try to encourage a culture whereby people get involved in elections. If the pilot schemes do that and are successful—many of them have been and I believe that there is consensus on that we shall begin to make progress. It is important that we do as, after all, the health of a democracy can in part be measured by the level of participation within it. The pilots have managed to engage and, in some cases, excite people in that process.
I certainly understand, and have sympathy with, the desire for probity in the way in which pilots are conducted, but I believe there are other ways of achieving that rather than trying to make every pilot subject to the affirmative resolution procedure. I believe that that would be self-defeating, cumbersome and bureaucratic and would virtually rule out by-elections as a means of piloting any innovation in the electoral machinery.
Baroness Hanham: I thank the Minister for his reply. He will not be entirely surprised to hear that I do not agree with him. It is perfectly proper that pilot schemes should take place, but it is equally proper that Parliament should have a role in monitoring how effective they are, how secure they are and how open to abuse they are. I am not at all sure that Parliament has had any role at all in that process so far.
There are real concerns about abuse and security as regards all methods of polling apart from the traditional polling station method. However, I accept that on some occasions the polling station method is not always entirely secure. If people are not recognised in one polling station and choose to nip off to another one, and if the tellers are not vigilant, matters can go awry, but I believe that the polling station method is less open to abuse than all other methods of polling.
Of course we want higher turnouts, but we do not want them on the back of corruption. There is no point in having a 58 per cent turnout if 20 per cent of it is
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invalid due to the way in which pilot schemes have been operated. There is a far more serious issue here than the Minister accepts.
Lord Bassam of Brighton: I do not underestimate the seriousness of the issue, but I question the means that the noble Baroness suggests to make the pilots more accountable. Certainly there should be debate on the matter, perhaps based on the Electoral Commission's reports on these issues, so that we can seek ways of making polling methods more secure. It is worth adding that each pilot is carefully evaluated by the Electoral Commission—that is part of its remit—and any permanent changes, as I think I said earlier, are subject to the affirmative parliamentary procedure. Therefore, some of the accountability mechanisms that the noble Baroness seeks already exist.
Baroness Hanham: I am not aware that that we have had any debates in this House on the pilot schemes. Therefore, the Minister's comment in that regard is not overly helpful. I hear what the Minister says. I shall probably return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 [Power to change date of elections in England]:
Baroness Hanhammoved Amendment No. 211:
Page 59, line 17, leave out paragraph (a).
The noble Baroness said: This brings us to a most interesting situation, if it were not so scary. The Government have decided that they will move some elections—just this year—from May to June. That is only a month, but what will it do? It will bring together four sets of elections. It is all being done in the name of voter turnout, I believe, and will bring everything together on the date of the European elections.
Apart from the fact that it seems to us wrongheaded of the Government to make changes to the electoral timetable on a whim—even if such changes are enshrined in legislation—that is not the way in which we ought to proceed. There is a fixed time-scale for elections in this country, particularly for local elections. There is a generalised view of general elections, but this concerns local elections. It is about the Government changing the rationale of having a period within which elections should be held.
What makes the matter worse is that—this is not unique to this Government—the Government put out a consultation paper to which they received responses, but before the Bill had commenced its passage in this House they said that the date of the 2004 elections would be changed.
Problems arise with holding several elections on the same date. In the past it might not have mattered too much, as all elections—except where gerrymandering occurred—involved the same voting procedure. But if these elections take place all on the same day, if you live in London you will be able to vote for the London Assembly by the additional member system, voting for both an individual candidate and a top-up party list. You will be able to vote for the London Mayor by a

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supplementary vote system to express a first or second preference for individuals. You will be able to vote for the European Parliament on a closed party list, voting once for a party. In a local government first-past-the-post system you vote for individuals.
I have a high regard for the ability and intellect of London's electorate. But it is a high test of intelligence to ask that electorate to sort out all those votes on the same day. It also raises the question of how a proper campaign can be run for any of these elections without getting the whole issue confused. We worry about the number of times that voters are canvassed or lobbied in some way or another. They will be fed up to the back teeth with the whole procedure if the elections are all rammed together on the same date.
I understand that the rationale behind the proposal is that voters will not want to vote on two separate occasions. It is highly open to question whether they would prefer to vote, as they would expect, in local elections on a particular date or to have to vote in several elections on the same date. The whole process is probably improper and I do not think that it will achieve what it is apparently meant to achieve. I beg to move.
5 p.m.
Baroness Hamwee: I should declare an interest, not only because I shall be a member of my party's list for the London-wide vote in the London Assembly election, but, if I am not elected by virtue of the election being postponed, I shall have drawn another month's salary. None of that prompts these comments.
On balance I support holding the elections together. The convenience of the voter is what matters most. Odd as it may seem to those of us who are election freaks, it is clear that most voters do not like being asked to vote. There is often a resistance to by-elections. I entirely agree with the noble Baroness, Lady Hanham, about the difficulties in London with a very complicated system. There will be only one additional difficulty which will be a vote for the European Parliament.
I was interested in the noble Baroness, Lady Hanham, talking about successive canvassing of voters. I certainly do not intend to go around asking separate questions on separate days. I shall knock on each doorstep once and ask one set of questions. If the noble Baroness has such resources available to her I am very impressed and perhaps we should surrender now.
My serious point is that in what is admittedly an unusual and difficult situation not only is it important that the politicians and the voters should have certainty but so should the returning officers. The necessary changes to the regulations and to the rules that will govern the combined elections should be made and known as soon as possible, especially as regards any amendments to the electoral areas to be used, any electronic counting of the European Parliament elections and the design of the ballot paper.
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I am sure that there are many other points. When will such changes be made so that returning officers can plan with greater certainty than they can at the moment?
Baroness Blatch: It will not be long before we shall need a GCSE in how to vote. Having voted in the last London Assembly election and in the referendum, I know that they are incredibly complex, even to those of us who are close to the centre of the wheel, who know that these matters are couched in legal language and how they work in practice. There is enormous confusion about the idea of coupling up different elections on one day, with complicated systems of voting. We are considering not only first-past-the-post voting, but many different systems. The European elections are conducted in one way, the London government elections in another way and local government elections in yet another way. It seems to me that asking an electorate to go to a polling station and to make sense of the vote has to be thought about carefully.
Lord Rooker: I was struck by the last question posed by the noble Baroness, Lady Hamwee. If the Bill does not receive Royal Assent in September—we need it for the new local government financial structure—I doubt we shall be able to conduct the elections. In order for the Bill to receive Royal Assent in September we have to finish the Committee stage today. That is my little homily.
I say to the noble Baroness, Lady Blatch, and to all three noble Baronesses, that I am a convert to PR. I was a first-past-the-post man for most of my life. As a convert people must be careful of my zeal. Anyone who is converted carries a health warning. To those who say that the public will never understand the matter and that it is too complicated I say four words: knitting patterns, football pools. I cannot read a knitting pattern but millions of women in this country and some men can and I cannot fill in a football coupon to save my life but millions of people can.
I do not accept the argument that people cannot understand such systems and that they are too complicated for them. People can understand them if proper explanations are given. However, I accept the point, particularly in London—London has a unique situation because of the Mayor, although there may be other mayors—that there will be three different systems of voting. I accept that point.
Baroness Hanham: There will be four systems.
Lord Rooker: Yes, I accept that there will be four systems. Perhaps we can be sensible and move to one decent PR system that we can all understand, with variations for different elections. I would be happy, but that is not the view of the Government.
We are proposing to combine them all. The reasons are fairly obvious. One could argue about improving voter turnout. I do not have voter turnout in my notes or in my memory but I can remember that in 1979 the European elections took place about a month after the general election and that has happened in another year

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since then. There was real confusion. A month later some of the same players were involved; others were so whacked that they had disappeared; the original posters were still up; there was the worry of getting in the financial returns for the previous election before the 35-day deadline; and there was the administrative cost to local government. It is not an insignificant amount, but that is not the complete reason. The package of reasons for holding elections on the same day is overwhelming in terms of common sense. People do not understand why we do not do something about it.
We have had recent consultation. The Electoral Commission has to be involved. The change will not be made on a whim. This is not a case of the Government chopping and changing, although the noble Baroness did not put it like that. This is primary legislation which is going through the parliamentary process. Ministers have not woken up one morning and changed the date of the elections. We want to give as much warning and notice as possible.
The great point about local government elections, the Mayor's election and the European Parliament elections is that the date is known in advance. That is what is wrong with not having fixed-term parliaments, but the Government are not in favour of that either, so I do not put that forward as a proposal.
I shall go through all the issues if need be, such as the parish councils being dealt with separately. The National Association of Local Councils is the voice for the community and town councils and supports the proposal. There is a massive extra cost involved, not just in money but also in human terms. If the turnout is affected it will be affected only by pushing it up which is a good thing. It is a common sense arrangement. The Euro-sceptics will always say, "You have predicated the whole of this because we have the date from Europe". It is true that we have the date from Europe. The British Parliament cannot control the European elections; we have signed up for them, but it is not a surprise to us. The only surprise is that it is in this Bill and was not in a Bill last year. The matter could have been considered a little earlier.
I take the points raised by the noble Baronesses about different electoral systems. I have to work on the basis that there will be plenty of explanation about the different systems in those areas where the electors are asked to use more than one system. That will be inevitable because of the European elections and national elections. I suspect that the number of spoilt papers will not be knocked out by the turnout. We shall have a net increase of people casting votes who were not involved in the democratic process before. That has to be a good thing, whether for the Mayor's election, local government elections or the European Parliament election.
That may not be a satisfactory explanation, but it is the only one that the Committee will receive because it is the only one that there is. It is based on common sense. It is not purely about money, although money comes into the situation. We are trying to learn from experience, particularly when the European elections
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have taken place just after local government elections or just after parliamentary elections, which has occurred on two occasions. I shall leave the Committee to ponder on knitting patterns and football coupons.
Baroness Hamwee: The words I wrote down were not, "knit one, slip one, pass the slipped stitch over", but I wrote down, "as much warning and notice as possible". I do not want to say to the GLA returning officer, "The Minister said that unless I got on with the Bill you would not get your regulations very soon". Perhaps I can persuade the Minister to be a little clearer about when the regulations will be produced or to acknowledge that there is a serious issue in preparing for the detail of the local elections. I know that working parties are meeting. I would be amazed if the Government were waiting for this legislation to pass before they considered that detail. Perhaps I shall leave that as a serious point.
Lord Rooker: It is a serious point. If the Bill does not receive Royal Assent in September, we shall have real problems. Leaving aside local government finance, which means multibillion pound changes in terms of the capital structure which was debated some time ago, if we do not have Royal Assent in September we shall be in real trouble. We can have all the consultation that we like for people outside, but until they know that the Bill is an Act there will always be a reluctance to set up the machinery and everything else. That is the reality.
Baroness Hamwee: I do not suggest setting up the machinery in a way that is irrevocable, but I suggest talking to those involved on the ground in such a way that the button can be pressed as soon as possible.
Baroness Hanham: I am sure that the Minister would be the first to accept that the Bill needs scrutiny. The kind of scrutiny that it has been receiving from the Committee seems to me to be perfectly proper. It has not been drawn out; all the way through we have raised issues that have been of great importance. Every time we open our mouths for much longer than the Minister thinks we should we have been under the threat from him that the Bill will not go through. The Bill has to be scrutinised to the full extent.
My second point is that I did not mention anything about Euro-sceptics. I simply mentioned the fact that European elections were to be joined with other elections. The European elections could be left in June and the others could be left in May and I do not believe that anyone would argue about that.
I am aware that in recent times elections have been moved for one other reason, the foot and mouth disease outbreak in 2001 when the local elections were delayed. I suggest that they were delayed with cross-party support. It is clear that this provision does not have cross-party support. It is also clear that the decision was made long before the Government were aware whether they had cross-party support because, as far as I am aware, there has been no other consideration of this matter until now.
Those points matter because if we are not absolutely scrupulous about elections, the timing of them and keeping to recognised, well-tried conventions, and if

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such matters are just changed—I did not say on a whim although one could think of reasons why the Government may want the change that could be considered whimsical—and if a precedent has been set for changing elections without having the agreement of all the people of the country (for example, the three-party support) we shall be on a downward slope which I would much regret. This is an important matter and something that has received far too little attention in the House, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 212 and 213 not moved.]
Baroness Hanhammoved Amendment No. 214:
Page 60, line 17, at end insert ", provided that the conditions in subsection (6A) below have been complied with.
(6A) In consulting the Electoral Commission under subsection (5) above, the Secretary of State must invite the Commission to report publicly on whether, in their view, the making of an order under this section is likely to—

(a) complicate the conduct of the ballot on the polling day or days;

(b) lead to greater clarity about and public understanding of the issues involved in the campaign for the elections being moved under the order and for the European Parliamentary elections;

(c) lead to greater or lesser risk of confusion among electors about the voting procedures in the elections concerned."

The noble Baroness said: Amendment No. 214 seeks to ensure that the views of the Electoral Commission are sought before the proposals are implemented. It is constructive to know that the Electoral Commission in its response to the consultation pointed out some of the matters to which I have referred: the possibility of causing confusion and the difficulties of running elections on the same day. It would have been helpful if the Minister had recognised or recalled for the Committee that that is what the Electoral Commission said. I have a copy of the consultation response, although not with me, and it is clear that the Electoral Commission was less than enthusiastic about the proposal to push all the elections together. Before we go any further, it would be a good idea for the Electoral Commission's formal view to be taken.
The other matter relates to Wales. I am aware that the Welsh Assembly has the power to deal with the issue, but is not particularly enchanted by the prospect. I beg to move.
5.15 p.m.
Lord Rooker: I take what the noble Baroness says about the Electoral Commission, which was set up by Parliament to do a long overdue job. It is a unique body in this country, and it performs excellently its role in consulting on the changes to the electoral system. It is correct and good that we have a body such as that to do such things, which is in no way sullied by politicians.
We cannot accept the amendments, however. In October 2002, we went out to consultation on our proposal—so the subject has been around for a while
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and is not a surprise to anyone. The proposal was to combine the English local and the Greater London Authority elections with the European Parliamentary elections. We invited comments from the Electoral Commission and other key stakeholders. The Electoral Commission is not the be-all and end-all, in fact—there are other key stakeholders involved in elections. We invited comments on the practical issues that would need to be addressed and suggestions on how they could be addressed.
The Electoral Commission made its response public on 3rd February. It was clear from that response that the commission had considered the complications that combination would create for the running of the elections, public understanding and the potential confusion for the voter. With different electoral systems, there is an inevitability about that, which is why we have to be careful. In setting up the Electoral Commission, Parliament recognised its impartial judgment. We do not see any justification for specifying the Electoral Commission's responses in any way on the issue, in terms of legislation. We considered all the responses received and the range of solutions available for the practical issues raised, and we believe that, if Parliament agrees, we can deliver successful elections in 2004, on the same day throughout the country for different bodies. Of course, an order-making power is to be used.
Amendment No. 215 proposes that the National Assembly for Wales, in fulfilling its duty to consult the Electoral Commission under Clause 105, should also invite the Electoral Commission to report publicly on whether in its view the making of the order, under Clause 105, would complicate the conduct of the ballot and influence the level of public understanding of the issues involved and the potential for voter confusion. It is for the National Assembly for Wales to decide whether to combine local elections with the European parliamentary elections in 2004. It has, to date, said that it does not wish to do so. That is up to the National Assembly for Wales—that is what devolution is about. Devolution means that decisions are made differently in different parts of the UK.
If the Assembly were to decide to do so, it would need to consult the Electoral Commission. However, there is no justification for specifying in legislation what the Electoral Commission should report on. The commission has shown from its response to our consultation exercise in England that we can expect it to address all the issues. At the end of the day, the matter is for the National Assembly for Wales to decide—not for this Parliament—under the devolution arrangements.
Baroness Hanham: Two matters arise from this debate. First, the Electoral Commission seems not to be very important any longer. Its views are not going to sway the Government very much, although some of its views are quite interesting. One comment made by the commission was that moving the elections potentially set a precedent for the future that would allow the Government to initiate a change in election date on grounds that went wider than exceptional circumstances. That is quite a criticism of a proposal.

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The commission drew attention to the confusion that the proposal might cause. The Minister is keen on his knitting analogy, but others of us might use crossword puzzles, or give other sorts of analogies as to the suitability of the elections being moved to the same day.
The matter is very concerning, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 agreed to.
Clause 105 [Power to change date of elections in Wales]:
[Amendment No. 215 not moved.]
Clause 105 agreed to.
Clause 106 [The Valuation Tribunal Service]:
Baroness Maddockmoved Amendment No. 215A:
Page 61, line 35, at end insert—
"( ) In the event of any conflict between the Service and a valuation tribunal as to what is a function of the Service within this section and what is a judicial or other matter within the jurisdiction of a tribunal, the Service, a tribunal or its President may request the chairman of the Council on Tribunals to appoint a qualified person to arbitrate between them and he shall do so."
The noble Baroness said: In moving the amendment, I shall also speak to Amendments Nos. 216A to 216C. I am grateful to the National Association of Valuation Tribunals for Amendments Nos. 215A and 216C, and for advice on them.
Amendment No. 215A relates to the conflict that can arise between judicial and administrative matters. Past history has shown the sort of problems that might arise. For example, an officer of the Valuation Tribunal Management Board, which the valuation tribunal service that is established by the clause will replace, purported to advise tribunals in a guidance note of what should or should not be the reasons for their decisions. In another case, the Valuation Office Agency, which is an agency of the Inland Revenue, sometimes considers matters from the point of view of efficiency that are arguably matters to be considered by a tribunal—for example, the treatment of invalid claims.
In another place, the Government did not actually dispute that there might be a need for Some dispute resolution procedure. The Minister has said that the Government are considering drafting an agreed dispute resolution procedure in the new valuation tribunal service management statement. The amendment probes a little further and asks the Minister to explain the Government's stance.
Amendment No. 216A would ensure that local authorities' views are taken into account. So far, they have been running valuation services without the proposed parent body. Clause 106(7) specifies that they will consult the valuation tribunal service. Again, we wonder why the distinction is made between local authorities and the service.
Amendment No. 216B, which is another probing amendment, is to Schedule 4. It probes whether members can be appointed to more than one term of office. That is fairly straightforward.
Amendment No. 216C would insert a new clause, which is almost a copy of a section of the Arbitration Act 1996, which gave arbitrators immunity. We are asking the Government to consider whether the statutory immunity given to arbitrators in the Arbitration Act 1996 should be extended or left unique, while the valuation and other tribunals rely predominantly on the immunity conferred by common law. From Regulation 48 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993, it would appear that the 1996 Act sometimes applies to valuation tribunals, though usually it does not. It is difficult to understand why a provision developed for arbitrators should not apply to other tribunals if judges and courts wanted it. It is arguably simpler than the existing common law immunity that has to be used to defend members at present. Government departments have no liability for tribunal errors and finance defences only at their discretion. We would like further clarifications from the Government as to why they do not consider dealing with the matter in such a way. I beg to move.
Lord Bassam of Brighton: Amendment No. 215 proposes to impose a statutory function on the chairman of the Council on Tribunals to appoint a qualified person to act as adjudicator in disputes between the valuation tribunal service and valuation tribunals as to whether a matter is administrative or judicial. We believe that judicial matters remain entirely the preserve of tribunals. As noble Lords can see, Clause 106(2)(b) is perfectly clear that one of the functions of the valuation tribunal service is to give general advice about procedure in relation to proceedings before tribunals. Our view is that disputes as to what is a procedural matter should be few in number and should be resolved through discussion. The imposition of a new statutory obligation on the chairman of the Council on Tribunals to refer on any disputes is an unnecessary burden, out of proportion with the perceived potential problem. We seek to create an administrative vehicle to address any such problems that arise, and have included a dispute resolution procedure in the new body's draft management statement.
Amendment No. 216A is also unnecessary. It would oblige the Secretary of State to consult local authorities as well as the Valuation Tribunal Service before issuing directions to the service about the carrying out of its functions. As Clause 106(2) clearly shows, the Valuation Tribunal Service's functions involve the provision of administrative support and general advice to valuation tribunals. There is no function related to local authorities, so we see no reason to consult them on directions we might issue in that area. I would be interested to know what the local authority interest is in that matter.
We can see no need for Amendment No. 216B, which was tabled to discover whether a person can be appointed if he is still qualified to be appointed. The answer is "Yes".
Baroness Maddock: In speaking to the amendment,
I asked specifically whether members could be appointed for more than one term of office.
Lord Bassam of Brighton: I believe that my answer was "Yes". They can be reappointed, so that would mean for more than one term.
Amendment No. 216C is also unnecessary, in that it seeks to remove any liability from members and clerks to tribunals for any acts or omissions carried out by them while undertaking their tribunal functions. Naturally, those holding judicial office have public policy immunity from an action in negligence. Similar protection already exists for members and clerks to valuation tribunals through the standard procedures governing the relationship between public bodies and their sponsoring departments. Departments will indemnify members and staff against any personal civil liability that is incurred in the execution of their official functions, provided that they have not been seen to act recklessly. I believe that I have answered all the questions asked by the noble Baroness.
Baroness Maddock: I thank the Minister for his reply. I am not sure that he takes us much further on the resolution procedure using Valuation Tribunal Service management statements—in fact, his comments are precisely what we have heard before. However, I shall consider carefully what he said and take advice. We may return to some of these questions at a later stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 216 had been withdrawn from the Marshalled List.]
[Amendment No. 216A not moved.]
Clause 106 agreed to.
Schedule 4 [The Valuation Tribunal Service]:
[Amendment No. 216B not moved.]
Schedule 4 agreed to.
Clause 107 agreed to.
[Amendment No. 216C not moved.]
Schedule 5 agreed to.
5.30 p.m.
Baroness Hamweemoved Amendment No. 216CZA:
After Schedule 5, insert the following new schedule—
"SCHEDULE 5A AMENDMENTS RELATING TO OPEN SPACE
Open Spaces Act 1906 (c. 25)
1 In section 20 of the Open Spaces Act 1906 (definitions) for the definition of "open space" there is substituted—
"The expression "open space" means any land laid out or maintained (or appropriated for laying out or maintaining) for the open air recreation, exercise or enjoyment of the public and—

(i) includes ancillary purposes, and buildings or structures on the land for those purposes, and

(ii) does not exclude land merely because restrictions of public access or charges are imposed as may be permitted by any Act."

Town and Country Planning Act 1959 (c. 53)
2 (1) The Town and Country Planning Act 1959 is amended as follows.
(2) In section 23 (exercise of powers of appropriation)—

(a) subsection (2) is omitted, and

(b) in subsection (3)(b) after "common" in each case there is inserted "or open space".

(3) In section 26 (exercise of powers of disposing of land)—

(a) subsection (2) is omitted, and

(b) in subsection (5)(d) after "common" in each case there is inserted "or open space".

Local Government Act 1972 (c. 70)
3 (1) The Local Government Act 1972 is amended as follows.
(2) In section 122(2)(a) (appropriation of land by principal councils), after "common," there is inserted "open space".
(3) In section 123 (disposal of land by principal councils) for subsection (2A) there is substituted—
"(2A) A principal council may not dispose under subsection (1) above of any land consisting or forming part of an open space except with the consent of the Secretary of State.
(2AA) Section 19 of the Acquisition of Land Act 1981 (commons, open spaces etc) shall apply to a consent under subsection (2A) above as it applies to a compulsory purchase order under that Act."
(4) In section 126(4)(a) (appropriation of land by parish and community councils and by parish meetings), after "common," there is inserted "open space".
(5) In section 127(3) (disposal of land held by parishes and communities), after the first "(2A)" there is inserted ", (2AA)".
Acquisition of Land Act 1981 (c. 67)
4 In section 19 of the Acquisition of Land Act 1981 (commons, open spaces etc), for subsection (4) there is substituted—
"(4) In this section, "common", "fuel or field garden allotment" and "open space" have the same meanings as in the Town and Country Planning Act 1990."
Town and Country Planning Act 1990 (c. 8)
5 (1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 229(2) (appropriation of land forming part of common etc) after "common" there is inserted ", open space".
(3) In section 336(1) (interpretation)—

(a) for the definition of "common" there is substituted—

"common" means—

(a) a common or town or village green registered under the Commons Registration Act 1965 (c. 64) or exempt from registration under section 11 (exemption from registration) of that Act or by virtue of any other act; or

(b) any other land to which section 194(3) of the Law of Property Act 1925 (c. 20) (restriction on inclosure of commons) applies;" and.

(b) for the definition of "open space" there is substituted—

"open space" means—

(a) land laid out or maintained for the open air recreation, exercise or enjoyment of the public;

(b) a garden square protected or maintained under a local act;

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(c) any other land or water used or designated on a development plan for open air public recreation, exercise, sport or visual enjoyment or for nature conservation or a zoo; or

(d) land which is a disused burial ground; and

(i) includes ancillary purposes, and buildings or structures on the land for those purposes, and

(ii) does not exclude land merely because there are restrictions of public access, or charges are imposed for that access."

The noble Baroness said: I beg to move Amendment No. 216CZA and to speak to Amendment No. 222A grouped with it. We have come to a new topic, but that is inevitable in a Bill which might be entitled, "Local Government Bill: Here is Everything on the Shelf which we Prepared Earlier". I say this to give the Ministers an opportunity to find their notes.
Lord Bassam of Brighton: Panic over; we have found our notes.
Baroness Hamwee: Perhaps I should have had more confidence in my argument.
Amendment No. 222A provides the clause to introduce the new schedule set out in Amendment No. 216CZA. Both reflect the concerns of the Open Spaces Society, to which I am obliged for both the point here and the drafting. The society has asked me to point out—I am sure that this will be the killer blow from the Minister—that on page 9 of the Marshalled List, at the end of the first amendment, Paragraphs 5(3)(d)(i) and (ii) should not apply only to sub-paragraph (d), but to the entire definition of "open space". I hope that the Minister will not base his arguments on only that point.
We all know the value of open spaces, but even quite small spaces can be vulnerable to development if they are not, for example, metropolitan open land; I refer to far smaller areas. Once gone, they are usually irreplaceable. The Open Spaces Society has expressed concerns that although development plans recognise their importance, too often a planning authority's own requirements amount to exceptions to development plans, and the Secretary of State—to whom applications in that situation must be referred—usually refuses to call in those requirements unless the open space is clearly of more than local importance. In general and almost by definition it is not so regarded.
The amendment seeks in part to establish consistency of definition and in part to define the powers of the Secretary of State. Ministers will appreciate that, while I am reluctant to centralise, although a degree of centralisation is inherent in this area, I would like to pursue the matter in order to probe the issues.
The principal powers under which local authorities acquire and maintain public open space are contained in the Open Spaces Act 1906 which consolidated earlier legislation. It provided a definition of "open space" which referred to,
"… land … inclosed or not, on which there are no buildings or of which not more than one twentieth part is covered with buildings, and the whole or remainder of which is laid out as garden or is used for purposes of recreation, or lies waste or unoccupied".
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The Open Spaces Society believes that this definition is too restrictive for modern conditions and proposes a substitution as set out in the suggested new Schedule 5A.
For the purposes of compulsory purchase and local authorities' appropriation and disposal of land, there are definitions of "common" and of "open space" in both the Acquisition of Land Act 1981 and the Town and Country Planning Act 1990, which are repeats from earlier legislation and apply also for the compulsory purchase provisions of the Local Government Act 1972. The Commons Registration Act 1965—I hope that all noble Lords are with me so far—permits a clearer definition of "common", which is what is being proposed in the new schedule.
Regarding the definition "open space" the Planning Policy Guidance Note, PPG 17, notes the 1990 Act definition, but states that,
"open space should be taken to mean all open space of public value, including not just land, but also areas of water such as rivers, canals, lakes and reservoirs which offer important opportunities for sport and recreation and can also act as a visual amenity".
While the amendment proposed here does not go quite so far, in the view of the society it is more realistic than the outmoded statutory definition.
The Local Government, Planning and Land Act 1980 relaxed controls and enabled local authorities to appropriate or dispose of open spaces other than common land merely by advertising their intention for two successive weeks in a local paper and considering the objections received. The proposed amendments intend to revert to the pre-1980 procedure and require any intended appropriation or disposal to be referred to the Secretary of State for a decision, as must still be done for the appropriation of a common.
So, bringing the definitions up to date and imposing more consistency is, in short, the intention of this quite lengthy amendment. I beg to move.
Lord Northbourne: I wish to make a brief comment on the proposed new schedule. I wonder whether it would bring the definition up to date. Surely the two factors which limit the usefulness of open space for recreation are, first, that it should not have buildings on it and, secondly, that it should not have motor cars on it. Absolutely no mention is made of motor traffic. For example, is a roundabout on a motorway an open space for the purposes of this proposal?
Lord Bassam of Brighton: This is a very interesting amendment—I like things that interest me—but it is a shame that we cannot have a more general debate. I have a long speaking note and, on reading it through again, I find it fascinating. However, I shall try to restrict my comments to dealing with the detail. I grew up in front of a village green on a common, so I, too, am keen on protecting open spaces.
The noble Baroness has explained that the main thrust of the new clause and paragraphs 3(2) and 5(2) of the proposed new Schedule 5A appears to be an attempt to turn the clock back to a pre-1980 position on the appropriation of open space and, by means of

GC 35
paragraph 3(3), to apply similar principles to disposals of open space. Therefore paragraph 3(3) goes further than any previous provisions, despite what the noble Baroness has said.
Under the deregulatory provisions contained in the Local Government, Planning and Land Act 1980, decisions made by local authorities about development opportunities which included the appropriation of open space required central government consent; indeed, the consent of Parliament was required via the special parliamentary procedure that was required if, broadly speaking, no other land was being given in exchange for that being appropriated. In our view, to impose or reimpose a rather draconian hurdle would be a rather retrograde step. Furthermore, the practical effects could be extremely significant.
The amendments are also directly contrary to the Government's policies on deregulation and putting decision-making about local matters back into the hands of local people. The noble Baroness will be aware, I am sure, that our policy on open spaces is set out in our Planning, Policy and Guidance Note 17, "Planning for Open Space, Sport and Recreation", requiring local planning authorities to protect all open space which communities need and to undertake a rigorous assessment of the existing and future needs of their communities for open spaces, sports and recreation facilities, including an audit of their own existing facilities. These should allow local authorities to identify and plan for specific needs and tackle quantitative and qualitative deficiencies. Additional detailed advice on how to put the policies into practice is given in "Assessing Needs and Opportunities", which acts as a companion guide to PPG 17. It should help authorities to protect and improve their urban green spaces and set better standards for the provision of open spaces, sports and recreational facilities.
We want to reverse the trend of increased centralisation and control over the detailed operation of councils—that is what this Bill is all about—and I know that noble Lords are very much in keeping with that spirit. However, the amendment would directly undermine one of the measures we are taking to provide all local authorities with more freedom.
As part of the steps we are taking to reduce the burden of unnecessary bureaucracy, last September we announced that we would deregulate a number of consent regimes. Following consultation in which overwhelming support for those proposals was expressed, shortly we are going to publish a new general disposal consent, allowing local authorities much greater freedom to dispose of land at less than best consideration without seeking government consent. We intend to achieve that by providing a general consent to dispose at less than best consideration, providing that the undervalue does not exceed £2 million and certain other conditions are fulfilled. The amendments proposed by the noble Baroness move in completely the opposite direction to those reforms and, in effect, seek to re-regulate and disempower local councils.
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In fact, because paragraph 5(3)(b) of new Schedule 5A seeks to expand the definition of "open space" in the Town and Country Planning Act 1990, the amendments would go beyond the pre-1980 position. The consent regimes for appropriation and disposal of open space potentially would apply to a larger area of land than they ever did before. The red tape would not only be revived, but lengthened.
Turning to the issue of the definition of "open space", which paragraph 1 would substitute for that set out in the Open Spaces Act 1906, I have to say that that seems to us to be rather strange. We assume that the basis for its inclusion is that the current definition is thought to be too restrictive, yet the definition includes unoccupied waste land, which the substitute definition would not. The definition of "open space" in the 1906 Act is important because not only does it determine how such land can be disposed of, but also which land can be acquired for permanent preservation. For example, it would prevent a local authority from acquiring waste land—such as common land—as open space for permanent preservation. So I am not sure whether the amendments have been properly thought through—or at least if they have, then that element has not.
The definition of "common" in the Acquisition of Land Act 1981 and the Town and Country Planning Act 1990 would be changed by paragraphs 4 and 5(3)(a) to one which is narrower than the present one, which I do not think is the intention of the noble Baroness. The current definition of common land in the 1981 and 1990 Acts embraces the extremely broad definition given to it in the lnclosure Acts, as well as any town or village green. The amendments would exclude some land which was not registered, or which could not be registered, under the Commons Registration Act 1965, such as regulated pastures.
Therefore the amendment would reduce the extent of the protection afforded to common land against compulsory purchase by Section 19 of the Acquisition of Land Act 1981. Moreover, there is a great deal of uncertainty about which types of land Section 194(3) of the Law of Property Act 1925 applies to. By relying on that provision, the amendment would in fact generate greater uncertainty.
As the noble Baroness may recall, we published the Common Land Policy Statement on 23rd July 2002. It contains a comprehensive package of proposals for reform of the law relating to common land. Those reforms will require legislation, although I cannot give a commitment as to when that will be brought forward.
Overall, we think that the amendments would not improve the scope or understanding of "common land" in compulsory purchase legislation. I hope that the noble Baroness will be patient until we achieve the further effective legislative improvements that we envisage and have very much in mind.
I have given a long and detailed response to this extremely interesting issue. Perhaps this Committee is not the best place to address it, but certainly the points relating to definition that have been made are both important and valid.
5.45 p.m.
Baroness Hamwee: I am grateful to the noble Lord for that response. I am happy to acknowledge that I have not been technically accurate in the amendment—or, in more common parlance, I have not thought it through. This is a highly technical issue and one which is far beyond me. It will be helpful to have that response on record. I am sure that I shall be told soon enough if questions arise from it. I do indeed recall the Commons publication that the noble Lord mentioned.
Of course I agree with the noble Lord's point about deregulation. As I believe I made clear, I included those points in the amendment more because they deserve an answer and not because I am trying to promote a move in a particular direction.
The noble Lord, Lord Northbourne, made a point about motor cars. I shall not begin to try to deal with it in the terms of the amendment, save to say that those who drafted it are far more familiar than I am with the underlying legislation. The noble Lord reminds me, however, that open spaces are too often used by powered two-wheelers, which degrade the open space and present a real problem.
I am grateful to the Minister for the time that has been given to this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 108 to 111 agreed to.
Clause 112 [Delegation]:
Baroness Hamweemoved Amendment No. 216CA:
Page 65, leave out lines 40 and 41.
The noble Baroness said: The amendment relates to the clause dealing with delegation to officers, among others, of the Audit Commission. I tabled this, and a similar amendment to Clause 113 dealing with the standards hoard, simply because I believe that the Government should justify delegation to officers. Delegation to members is one matter, but delegation to officers is another and might be quite significant. It is as simple and short as that. I beg to move.
Lord Rooker: I can make my response simple and short, and give the same answer to both amendments. Both raise the same point in respect of the two bodies.
The Audit Commission is made up of part-time commissioners. The purpose of Clause 112 is to allow the full board of the Audit Commission to operate more efficiently by delegating certain matters so that formal decisions can be made without the need to await a meeting of the full board or to consult all members of the board in writing.
The noble Baroness is concerned about the possibility of decisions being delegated to officers as well as to committees or sub-committees. We need to give the board maximum flexibility. A similar power in relation to the commission's best value functions under Part 1 of the Local Government Act 1999 already exists in Section 22 of that Act.
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The power to delegate which Clause 112 would give will be exercised on the basis of a delegation schedule. This schedule will need to be approved by the full board and will describe which matters are to be delegated to a committee or sub-committee of the full board and which are to be delegated to named officers. Only matters which the full board are satisfied are appropriate for delegation to officers will be so delegated.
It will be for the board to decide what those matters should be, but they could be detailed matters such as the composition of an audit team for a particular authority or matters relating to staff conditions or contracts.
Virtually the same points apply to the standards board, because the amendment again seeks to restrict the scope of proposed powers of delegation by preventing the board from delegating functions to an officer or servant of the board. They are designed simply to allow the board to put in place efficient processes for carrying out the various functions given to the board under the Local Government Act 2000.
It would mean, for example, if we were prevented from doing this, that members of the board would have to be involved in every decision whether to investigate an allegation. The board would be unable to put in place sensible procedures for more rapidly dismissing frivolous allegations or for commencing investigations where there was a clear need to do so.
If the intention of the amendment in this case is to ensure that the standards board remains responsible and accountable for its functions, it is completely unnecessary, because the hoard would continue to be responsible for all the functions carried out under a scheme of delegation. So, again, the matter would have to be approved by the full board.
So the purpose of both amendments is the same. It is reasonable and understandable that the amendments should have been tabled. I hope that the noble Baroness will consider that the answer to both is equally reasonable.
Baroness Hamwee: I entirely take the point that dealing with small, routine matters should be made as easy as possible. My concern was greater in regard to the standards board than it was in regard to the Audit Commission, given that the standards board has very considerable powers. It is not merely a question of what it does at the end of the day—by way even of possible disqualification; but it has the powers to require documents, e-mails and so forth to be presented for examination. This is a serious matter. I shall read the Minister's response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 112 agreed to.
Clause 113 [Standards Board fir England: delegation]:
[Amendment No. 216D not moved.]
Clause 113 agreed to.
The Deputy Chairman of Committees (Lord Tordoff): A Division has been announced, so the Committee will now adjourn for 10 minutes.
[The Sitting was suspended for a Division in the House from 5.53 to 6.3 p.m.]
Baroness Blatchmoved Amendment No. 217:
After Clause 113, insert the following new clause—
"ADOPTION: CONSCIENTIOUS OBJECTIONS
(1) No person employed by, working for or acting as an adviser to a local authority shall be under any duty whether by contract or by any statutory or other legal requirement to participate in—

(a) any placement under section 18 of the Adoption and Children Act 2002 (c. 38) (placement for adoption by agencies); or

(b) any application under section 49 (applications for adoption) of that Act;

to which he has a conscientious objection on either of the grounds specified in subsection (2).
(2) The grounds referred to in subsection (1) are that the placement is with, or the application is made by—

(a) a couple who are not a married couple;

(b) one person who is in fact part of a couple within the meaning of section 144(4)(b) of the Adoption and Children Act 2002 (general interpretation etc.).

(3) In any legal proceedings the burden of proof of conscientious objection shall rest upon the person claiming to rely on it.
(4) A local authority shall not treat less favourably any person who relies on subsection (1) above.
The noble Baroness said: The purpose of the amendment is to protect staff employed by, or advising, a local authority in its adoption services.
Towards the end of last year, the new Adoption and Children Act was passed. One of its provisions is to allow same-sex couples jointly to adopt children. Now is not the time to repeat the many arguments against this idea—that debate is over. But one thing that last year's debates surely indicated is that this form of adoption is a controversial issue.
Many people in this country do not think that adoption by same-sex couples is in the best interests of children. They feel strongly that vulnerable children should be placed for adoption with a mother and a father. Among those who disagree with same-sex adoption are professionals who work in the adoption services. They are caring and diligent employees, some of whom have long and distinguished records of service. The effect of my amendment is to protect such staff from intimidation and maltreatment because of their conscientious objection.
The amendment inserts a new clause into the Local Government Bill after Clause 113. It provides that no person employed by, or advising, a local authority is under any duty to participate in an adoption where the prospective adopters are an unmarried couple applying jointly, or an unmarried couple where only one member of the couple is applying.
The Local Government Bill is the appropriate place for this measure because every local authority is under a statutory duty to maintain an adoption service under
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Section 3 of the Adoption and Children Act 2002. It is a fact that some 84 per cent of all adoptions are made by local authority adoption services.
This protection is urgently needed. The past few months have already revealed disturbing threats made by local authorities to adoption staff who do not want to take part in adoptions to same-sex couples—that is before the relevant sections of the new adoption Act have even come into force.
One particularly alarming example of such intimidation is the treatment of long-serving adoption workers Dawn Jackson and Norah Ellis. It deserves to be put on the record. Until recently, Dawn Jackson and Norah Ellis were members of the adoption service of Sefton Metropolitan Borough Council in northwest England. Between them, they have nearly 50 years' experience in adoption and fostering. But they have now been forced out of their jobs for their conscientious objection to same-sex adoption. Their case has been widely reported in the national press.
Dawn and Norah are both Christians and can cite sound evidence against same-sex adoption. Indeed, many colleagues in their department have previously expressed agreement with that position. Although both Dawn and Norah had previously had informal discussions with their management about their views, the formal letter that threatened them with dismissal arrived without warning. In fact, it arrived in December 2002, less than a month after the new Act received Royal Assent. The letter from the director of social services warned them that they would have to abandon their objection or lose their jobs.
Dawn and Norah had many discussions with lawyers, but they felt that they would have to move to other jobs in the council because threats and the new atmosphere of intolerance made it impossible for them to continue their work in adoption. Sadly, they no longer work with children.
This is a terrible affair. Dawn Jackson and Norah Ellis were not ineffective or incompetent employees. The only issue was their profound belief that placing a child with a father and a mother was in the best interests of the child. I am sure that Sefton's adoption service is much poorer without them.
There are other cases that show the unreasonable and hostile attitude of some in social services. They pre-date November 2002. In fact, during the passage of the adoption Bill, on 16th October 2002, I referred to the case of the paediatrician Dr Joy Holloway, as reported in Hansard at col. 897. Dr Holloway had much experience in adoption. In that capacity, she published a paper that summarised the evidence against homosexual parenting. In response to her reasonable comments, Dr Holloway suffered great harassment from her employers and was moved from her job. Can anyone defend such intolerance?
Another example of that culture concerns Pam and Trevor Birtle, who operate an agency providing training for foster parents in north-east England. They were told by two members of the fostering panel that they were,
"unfit to foster any child or work for any local authority".

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What was the basis for such a sweeping statement? Simply their unwillingness to support same-sex relationships. That sorry episode raises the possibility that protection should also be extended to those who work in fostering. However, my amendment would not do that.
I would have thought that Article 9 of the European Convention on Human Rights, enshrined in our much-vaunted Human Rights Act, would have protected Dawn Jackson, Norah Ellis, Joy Holloway and others. Article 9 aims to protect everyone's,
"right to freedom of thought, conscience and religion".
However, it seems to have failed to do so in this case. I therefore tabled Amendment No. 217 so that there is clear protection on the face of a statute.
I wish to make it clear that Amendment No. 217 protects only professional staff who are fully equipped to carry out their jobs but who have a principled objection either to same-sex adoption or to adoption by cohabiting heterosexual couples. It does not protect incompetent or lazy employees making unfounded excuses. It parallels a similar provision in the Abortion Act that has proved effective.
There are other controversial issues in our society where Parliament has deemed it necessary to protect freedom of conscience. In the same way that homosexual adoption is a controversial issue, so is abortion—indeed, so is religion and people's religious opinions.
Under Section 4 of the Abortion Act 1967, doctors who oppose abortion for moral or professional reasons cannot be required to participate in abortions. It protects staff with a conscientious objection. However, there has been a longstanding concern by some medical professionals that they feel sidelined—for promotion and in other ways—because of their opposition to abortion. Proposed subsection (4) in Amendment No. 217 would create an additional safeguard for staff who may be mistreated because of their beliefs.
Similar conscience provisions apply in education law, which since 1944 has protected teachers from being discriminated against because of their religious beliefs. That provision is currently still on the statute book and can be found in Section 59 of the School Standards and Framework Act 1998.
The problems in adoption have so far revolved around the issue of same-sex couples. However, Amendment No. 217 also covers those who have a conscientious objection to taking part in adoptions by a cohabiting heterosexual couple. Christianity and the other major world religions believe that sexual activity outside marriage is wrong. Many adherents to Christianity and other religions work in adoption, and they deserve protection for their conscientious views in such instances.
Some involved professionally in adoption have said that we should allow only the staff of voluntary adoption agencies to maintain a principled objection to homosexual adoption. I cannot understand that. How can it possibly be right to allow freedom of conscience in a voluntary agency but not in a local
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authority? Is there to be a blanket ban that excludes from local authority adoption services Christians and other conscientious objectors to same-sex adoption? Will everyone who works with a local authority be compelled to conform to an ideological secularism, despite all the evidence, common sense and deeply held convictions that run counter to it?
I end by returning to the case of Dawn Jackson and Norah Ellis. On reflection, it proves at least three things. First, it shows that there is a serious atmosphere of intimidation in some social work departments. Secondly, it shows that existing law does not offer clear protection to good, competent professional staff who genuinely hold a conscientious objection to adoption outside marriage. Thirdly, it shows that the pressure on staff to approve of same-sex adoption has grown significantly since it was legalised by the Adoption and Children Act last year, despite the fact that the relevant part of the Act has not yet commenced.
Make no mistake, my amendment does not outlaw or invalidate what the Adoption and Children Act says. It simply allows good, competent professionals involved in adoption a conscience clause just as doctors and teachers enjoy one. Now that the law allows joint adoption by same-sex couples, the pressure will be even greater on adoption workers to take part in same-sex adoption. There is an urgent need for Parliament to act now to defend innocent and much-needed professionals. I beg to move.
6.15 p.m.
Baroness Barker: I begin not with an apology but with regret that I must intervene in the middle of the Committee's deliberations on the Bill. Approximately a year ago in this very room—it was as hot then as it is now—many noble Lords sat through the whole of the Committee stage of the Adoption and Children Bill. The part of the Local Government Bill that we are discussing attracted perhaps undue attention during the passage of the Adoption and Children Bill. Perhaps that is reflected in the discussion today.
One would assume from the remarks of the noble Baroness, Lady Blatch, that the provision we are discussing is an ideological matter which we are discussing outwith the context of the rest of the adoption system. However, that is certainly not the case. I refer to the decision which your Lordships' House took last autumn. The decision was not taken lightly or thoughtlessly and was taken after a great deal of consideration within the context of a long and complex piece of legislation, at the heart of which is one overriding principle; namely, that the needs of children should be paramount, just as they are in the Children Act. The measure constituted a huge change in the whole of our adoption legislation and was a thread that ran through absolutely every aspect of the Bill that we discussed. It was for that reason alone that a great many noble Lords eventually came to the conclusion that it was right to allow unmarried couples—and, within that, same-sex couples—to adopt as couples. We studied evidence which had been considered in a Select Committee. On the basis of that

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evidence many noble Lords were convinced that the decision they arrived at was in the best interests of children.
Throughout the passage of that Bill I thought long and hard about the issue. I took a special interest in the aspect that came to be known in shorthand as retrospection. That is shorthand for people who had given away children for adoption many, many years ago being able via an intermediary to find out what had happened to them. It also covered the siblings of such children.
In the course of that consideration I received a great many letters from adults who had been adopted as children and for whom trying to trace what had happened in their early life was traumatic. In many of those cases people had studied records to try to find out what had happened to them and why they had been moved to different places. Several of the letters centred on one particular point; namely, that people could not understand why they had been treated in the way that they had been. The only explanation that they could arrive at was that social workers and adoption agencies had acted according to their own set criteria. A number of the people who wrote to me stated that they were moved from placements where they were happy. The only reason they could deduce for such a move was a difference in religion as between them and the people with whom they had found a placement where they were happy.
One of the key threads which ran throughout our debates concerned the consistency or inconsistency of social workers. Throughout our discussions social workers came in for somewhat of a bashing. During the passage of the Adoption and Children Bill we tried to ensure consistency of treatment of children on the part of local authorities and social workers. The noble Baroness, Lady O'Cathain, spoke memorably of prospective adopters and the way in which they had been treated. She mentioned prospective adopters who had been turned down as they were too wealthy. That situation will come to an end under the terms of the Adoption and Children Act and through the enshrinement of the principle that children's rights are paramount.
Having argued as passionately as the noble Baronesses did throughout the passage of that legislation I find it strange that they should now try to overturn that principle and that practice and say that social workers should be allowed to exempt themselves from a law which has been passed. I do not believe that that is in the interests of any child. What is in the interests of children is to have a law which has been thoroughly considered—as the Adoption and Children Act was—and to have it implemented with consistency and consideration.
The noble Baroness's terminology was somewhat striking when she talked about intimidation, unreasonableness and hostility. Employees of local authorities have to abide by the law. Many people with strong convictions and religious beliefs work for local authorities and have to uphold laws which they find offensive and repugnant. Section 28 is a prime example
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of that. However, it is the law and, be they Christians or be they not, they have to uphold it without exception. I do not see why there should be an exception in this case.
I make one final point to the noble Baroness, Lady Blatch. To equate placing children with gay people who have proved conclusively that they meet the tests of all prospective adopters with abortion does her case no credit at all. We are talking of very different and distinct matters. Last year, after lengthy consideration, the House took a decision with which the noble Baroness disagrees; however, it took that decision knowingly. The decision was to put the rights and interests of children first. I do not believe that the noble Baroness has made the case to overturn that decision.
Earl Russell: The noble Lord, Lord Denham, taught me a number of years ago that it is a sound rule in procedural matters, before doing anything, to consider what one would feel if the other side did it. I shall therefore ask the noble Baroness, Lady Blatch, to consider what she would feel if someone were to introduce an amendment to allow a right of conscientious objection to those who object to children being adopted by a married couple, or who object to children being adopted by heterosexuals. I believe that the noble Baroness would feel a good deal of indignation about that; indeed, it might detain the Committee for some considerable time.
This is a matter of equality. The noble Baroness said that we were condemned to an ideological secularism. Not so. We are condemned, for good or ill—those who wish to do so may think that it is for ill—to live in the world with the other people who happen to be in it and who happen to be a very diverse collection of people. Some of them like living in one way and some like living in another. That is just like the parties in this House. We disagree passionately about a great many things. We live at peace together because we accept an equality with each other, a common bond of procedure and a sense of fair play, of which Lady Young was so notable a protagonist—it was for that above all that I respected her so deeply.
The amendment produces an inequality in that it allows a conscientious objection on one side but not on the other. That is like the Government saying that they can break the rules of procedure but that no one else can. All governments would like to say that. We spend much time stopping them. People cannot live at peace with each other when they are constantly getting from another group of their fellow citizens the message, "You are inferior". I remember getting that as a child in America for being an Englishman. It made me a great deal more proud of being an Englishman than I ever was before; I was extremely pig-headed and pugnacious about it. That is the sort of effect that the amendment would have if it became law.
Lord Northbourne: I had not expected to speak to this amendment but I am distressed by the tone that the discussion has taken. If I stand with anyone, I stand with the noble Earl.

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My recollection of the Adoption and Children Bill—I was present for quite a lot of those sittings—is that we all felt that the criterion for a decision about an adoption was to be the best interests of the child. No noble Lord has so far acknowledged that the best interests of the child may be a matter of opinion and that the professionals who are charged with making the decision may have different views. I am absolutely amazed, if it is true, that there is no conscience clause regarding social workers who hold a particular view, or if they are forbidden to hold a particular view. It may be that the social worker should not be working in that department, but if he or she holds the view that children should not be adopted by unmarried couples, so be it. That is a professional opinion which the person should be entitled to express It can then be overruled. But to say that a social worker has to have a particular opinion because it is politically correct at this point in our social history seems very unjust.
Baroness O'Cathain: I certainly do not intend to go over all the points raised during debates on the Adoption and Children Bill last autumn. I want merely to refer to the idea of conscience.
I echo the point made by my noble friend Lady Blatch. Other legislation includes a conscience clause. I refer in particular to the Abortion Act. With great respect to the noble Baroness, Lady Barker, I do not equate abortion with adoption. I am merely saying that there are people who may object on religious and moral grounds. We are not arguing about the grounds. We merely accept the fact that, regardless of what religion people have—indeed, they may have no religion—and regardless of whether they have a moral stance, they should be allowed to exercise their conscience on this issue.
The noble Earl, Lord Russell, made me smile when he said that, just because he was different, he felt that he was inferior and it made him big-headed and pugnacious. I cannot imagine the noble Earl being either big-headed or pugnacious. I have had amazing respect for him over the past 12 years while I have been in this House and I have listened to him avidly. So I think that he is over-egging the pudding.
However, I can arrive at the same position as the noble Earl, having been in a minority all my life. I understand the point about being big-headed or pugnacious. One does fight for those who are in a minority position. I feel that social workers—who are being intimidated and unnecessarily upset over this issue—should be allowed to back off from one part of their job when there are plenty of other people who want to do it.
Over 80 per cent of adoptions in this country are undertaken by local authorities. So there must be quite a few people in local authority departments who deal with adoptions. Can we not, for heaven's sake, allow one or two people to say, "I am sorry, I cannot do that. My conscience will not let me", or, "My religious/moral views will not let me do that"—as happens in
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hospitals in relation to the Abortion Act? The amendment seeks nothing more or less than that, and I support it absolutely.
Earl Russell: Perhaps I may offer one short correction for the record. I am grateful to the noble Lord, Lord Northbourne, for his remarks, but I did not say that I expected anyone to hold any particular opinion because it was politically correct, or for any other reason; merely that people should let their opinion compete on equal terms with all others, and, as far as possible, as we do in the Chamber, attempt to argue the difference in language that is common to both sides whenever it can be done.
Baroness Hamwee: Perhaps I may put one question to the noble Baroness. If a social worker has a problem of conscience over this issue—this is an entirely straight question—is it possible for that person to work in the field of adoption at all? By definition, a part of the pool of possible adopters identified by the local authority will not be able to be considered by that individual social worker.
Lord Northbourne: The words "conscientious objection" continue to be used. I would rather use the words "conscientious opinion" or "professional opinion" in this context.
6.30 p.m.
Lord Rooker: In response to the initial comment of the noble Lord, Lord Northbourne, the tone of the debate was set by the noble Baroness, Lady Blatch, who managed to speak for 11 minutes without once mentioning the child. That is where the tone was set, so I do not see—
Baroness Blatch: My Lords—
Lord Rooker: Hang on a minute, I shall give way in a moment. I do not want us to get off on the wrong foot, but that is the case. The noble Lord, Lord Northbourne, raised the issue about tone because of the other speeches made. The mover of the amendment set the tone. That is the bald fact, and Hansard will justify what I say. The issue of the child being put first was never mentioned in the opening speech; it came from the noble Baroness, Lady Barker, to start with. Now I will give way.
Baroness Blatch: If the noble Lord looks at Hansard tomorrow he will see that I argued about professionals who considered that it was in the best interests of the child to be placed with a mother and a father. I hope that Hansard will confirm that. I said it quite early in the 11 minutes.
Lord Rooker: That is not the same thing, with respect. The best interests of the child are paramount. Frankly, if people cannot think about that and accept it, they should not be in the business in the first place. It is not for them to pick and choose. They either put

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the child first or they do not—they put themselves first. The argument today is putting other people first, not the child.
Lord Northbourne: I am grateful to the Minister for giving way. I started by referring to the best interests of the child. The Minister is assuming that he has the right answer. There are honest, genuine differences of opinion, including professional opinion. Those must be taken into account by any reasonable government.
Lord Rooker: All I said was that the first comments of the noble Lord, Lord Northbourne, were about the tone of the debate. But the only point I make is that the tone was set by the mover of the amendment. Although it was said that the amendment was suitable for local government legislation, it could be argued that it is a straightforward employment issue. We are dealing with employment legislation. The first few words of the clause are:
"No person employed by, working for".
I do not know about the individual cases mentioned. I presume that the individuals involved were named with their permission—that is what would normally happen in another place. I assume that that is the case; I am not making a point. I shall not comment on any individual cases.
I do not have a lot to say. However, those who look at the clause will ask, "Where do you stop on the next one?" It is interesting; we are told that there are lots of conscientious objections, but only one example has been raised. Nobody has raised any issue other than abortion. That is the reality. The phrase used in the amendment is not "conscientious opinion", it is "conscientious objection". The only analogy made is abortion; nobody is offering anything else.
The noble Baroness, Lady Blatch, made the point about the Christian religion. On proposed subsection (2)(a), some social workers might object to parents who are married but are of mixed religions—for example, a Muslim married to a Jew. A social worker might say, "Oh, we have a dodgy issue with the children there. We will have real trouble". Do not say that that does not exist; it does. Where do you draw the line? You stop putting the interests of the child first the minute you go down that road. The minute you start to qualify, you do not make the interests of the child paramount.
The situation is not hopeless for the employees whom the amendment is designed to help. I shall not use the term "the way forward", but certainly the avenue is not closed for people like that. I do not know the detail of the 2002 legislation, but I am well aware of the debates that took place in your Lordships' House when I was a newcomer here. I realised the sincerely held beliefs of people on all sides. Nevertheless, Parliament decided in the end. That is the position that we face today. I do not seek, nor should we seek, to unstitch what Parliament has decided but which has not come into full operation yet.
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Parliament has taken the view for the first time that unmarried couples, regardless of their sexual orientation, may apply to adopt a child jointly. Let us face facts: it was a bit of a farce that a couple could adopt but only in the name of one person. A blind eye was turned to the rest, was it not? We did not hear complaints about that. That is hypocrisy on a grand scale, which Parliament has now corrected—and rightly.
The Adoption and Children Act raises no new fundamental issues in that respect. Therefore, we do not believe that there is any need to make special provision for a conscientious objection as a result of the change to enable unmarried couples to adopt jointly. Unmarried couples could adopt. In the past, only one partner could adopt, but now they can adopt jointly. That has now been dealt with. The key benefit for children as a result of the change in 2002 is that it enables a child adopted by an unmarried couple to enjoy the permanence and security of two parents, not only one parent.
In the past we were prepared to put up with one-parent adoption because it satisfied our religious beliefs and opinions, not those of the child. But that was no good for the child because only one parent could adopt; now two parents can do so.
Essentially the proposed new clause raises quite narrow employment issues; matters we believe would be more suitably addressed by the Employment Equality (Religion and Belief) Regulations 2003 which were approved by both Houses on 17th June. These regulations, when made, will prohibit discrimination on the grounds of religion or belief in employment and vocational training.
Local authorities have a duty to maintain an adoption service in their area that meets the needs of those who may adopt a child. I have no idea how many surplus social workers there may be in the field of adoption. I do not have any figures or, indeed, anecdotal information about that. Of course the function of the local authority now includes dealing with unmarried couples and individuals who are in fact part of a couple. The proposed amendment would make it more difficult for local authorities to meet their duties and could lead—or even inevitably would lead—to delays in the assessment of prospective adopters able to meet the needs of those children waiting for adoption. The Adoption and Children Act 2002 was a long time coming, but we think it is unacceptable to risk young children losing out on the chance of, or experiencing delays in, finding a new family.
With the best will in the world, and I cast no personal aspersions, I believe that this would be a damn dangerous road to go down. We in Parliament would go down this road at our peril, because it would be used as the thin end of the wedge in other areas later on. Therefore, I do not think that noble Lords should have anything to do with it. Obviously, given the other procedures contained in the Bill, this will not be the end of the matter. Moreover, as I have said, we consider this to be first and foremost an employment

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issue. The House has already approved the order from which the regulations will flow in due course, thus preventing people from being discriminated against on account of their religious beliefs. That is a perfectly acceptable way in which to approach this issue.
Baroness Blatch: The Minister will not be surprised to learn how disappointed I am with that reply and, indeed, how disappointed I am with the tone of this debate. The noble Baroness, Lady Barker, began by remarking that the issue of permitting same-sex adoption attracted "undue attention" in the Bill. I have always respected the views of others in this House and I have particular regard for everyone's opinions. After all, we are a House of Peers; each personal view is as legitimate as that of anyone else. I do not term as "undue" the remarks of anyone who thinks differently from myself about this provision. It is their right to hold their view.
In direct response to the noble Baroness, Lady Hamwee, who asked whether it would be possible for such a social worker to work in the field of adoption, I say this: should a doctor be struck off simply because he does not like performing abortions? Should a teacher be prevented from teaching simply because they do not wish to take assemblies in schools? Their conscience clause is written into legislation and I believe that I am asking simply for the same form of conscience clause to be afforded to those social workers who in every other respect are excellent professionals. They should be allowed the same provision.
I resent very profoundly the Minister's comment that I am not concerned about the interests of the child. In this House there is no monopoly in concerns about the interests of the child. I have given years of my life to concerns about the interests of the child. If my means to that end are different from those of the Minister or different from those of the noble Baroness, Lady Barker, or different from those of other noble Lords, do not accuse me of being insincere in what I say.
For the record, in fact I mentioned the interests of the child in the second paragraph of my remarks, which would have been within the first 20 seconds of what I said. I repeated that in around the third minute when I said that the only issue was the profound belief of social workers that placing a child with a father and a mother would be in the best interests of the child. So the idea that I spoke for 11 minutes without once mentioning the best interests of the child is simply untrue.
The noble Lord invited me to look at Hansard tomorrow. I should prefer it if he will now accept that I argued not only for the best interests of the child— but not quite in a way that the noble Lord would agree with—but that I physically mentioned that a number of times. My only motive in this regard is to protect professionals who also believe that they are acting in the best interests of the child.
Nothing that the noble Baroness, Lady Barker, said was relevant to my amendment. I was not in any way invalidating the Adoption and Children Act. I spoke
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vigorously during the passage of that legislation but I accept the will of Parliament. Parliament decided, and I have accepted that decision. In so doing, I said that there was a residual problem for those professionals who feel uncomfortable in this regard. I fought for their right. The decision was taken by Parliament, and nothing in my amendment invalidates that. My narrow point was to ask for a conscience clause for those good professionals.
Parliament also passed the Abortion Act; but it was accepted, after the legislation had been enacted, that a conscience clause was needed for those doctors who felt unable, because of religious or other beliefs, whatever they may have been, that they could not actively work on the issue of abortion. The same happened with teachers.
I am grateful to my noble friend Lady O'Cathain and to the noble Lord, Lord Northbourne, for their support; I believe that they, too, were acting in terms of the best interests of the child. I ask those who oppose me: do they really agree with the level of harassment and intimidation that drove people out of their jobs simply because they profoundly believed that they would not have been acting in the best interests of the child? If that is what they believe, that would be outrageous. I did not argue with Parliament's conclusions on the Adoption and Children Bill. The point of my amendment was to come to the aid of good, competent professionals and allow them to exercise their conscience without fear of intimidation. I do not approve of such intimidation at all, and I certainly do not approve of it in this case.
I have enormous respect for the noble Earl, Lord Russell. Even if I do not always agree with his views, I always respect his right to hold them. However, to ask for a conscience clause for people who disapprove of placing a child with a heterosexual makes light of my amendment. There is an issue in this regard. That is rather like saying that someone might argue for a conscience clause for people who believe that there should not be abortions. The law is the law. Abortions are allowed under the law, as is adoption by same-sex couples. One is looking at trying to keep the best professionals in the profession. After all, social services departments and children's departments are very short of good professionals. We should not lightly set them aside—out of the profession—simply because they do not agree with this aspect of the Adoption and Children Bill.
In conclusion—again, I hope that I do not incur the wrath of the Minister—most children who are up for adoption are vulnerable. They are often emotionally damaged. Those professionals who take the view that the best long-term interests of the child are met by placement with a married couple should be supported. I cannot put the amendment to a vote at this stage but I shall return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 114 [Standards committees and monitoring officers: delegation]:
Baroness Hanhammoved Amendment No. 218:
Page 66, line 20, at end insert "but shall consist of not fewer than three and not more than five members"
The noble Baroness said: The four short amendments that I tabled to Clause 114 all relate to standards committees. Amendment No. 218 would give some substance to the structure of the subcommittee that it is proposed should be appointed. I anticipate that the sub-committees will be promoted by and large to deal with matters that the standards board for England passes back to the local authority for cases of misconduct, or minor misconduct. If I am correct in that, there should be a limitation on the number of people taking part in the deliberations on that matter.
Standards committees in local authorities vary in terms of the number of people involved and the constitutions. It is proper and right to ensure that there is a limit to the size of the sub-committees of standards committees, especially if they are making a judgment on a member who may have been accused trivially. In fact, the member must have been accused trivially if the matter had been sent back by the standards board. I beg to move.
Lord Bassam of Brighton: We are opposed to the amendment for very sensible reasons.
[The Sitting was suspended for a Division in the House from 6.46 to 7.9 p.m.]
Lord Bassam of Brighton: Before I respond to the amendment, I should draw attention to a problem of time-tabling. We still have approximately 15 groups of amendments before us, and it is clear that we cannot finish by 7.30 p.m. After discussions among the usual channels, it has been suggested that we shall probably have to reconvene the committee tomorrow at 3.30 p.m. to complete the Committee stage. I realise that that creates problems with various Members of your Lordships' House with regard to diaries. However, it is generally acknowledged that it would be difficult to go beyond 7.30 because there is sufficient business of relative controversy which would probably take the Committee a long time to complete.
We shall probably have to give proceedings another day. That could affect the issue of time-tabling for the Report stage of the Bill. My understanding is that the usual channels will discuss the time-tabling as a matter of some urgency and importance. I hope that that covers the issue.
I was dealing with Amendment No. 218 which, as the noble Baroness explained with crystal clarity, seeks to limit the size of the standard sub-committee to three with a maximum of five. Our point is a simple one. We expect that that is exactly what would happen from time to time with standard sub-committees because, as the noble Baroness said, they are likely to deal with issues of discipline and misconduct. We do not believe that that is something for which we need to legislate on
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the face of the Bill. We have a provision that if regulations are required on that they can be made, and if it should prove necessary on the basis of experience—experience is important in this area—for a limited number to be introduced for certain circumstances, those regulations could be made.
We agree with and understand the issue, but we believe that there is sufficient flexibility here. We have the facility to use regulations to impose a limit if necessary, but we do not want to impose such a limit. We believe that to be unnecessary and restrictive, diminishing important flexibility. I hope that the noble Baroness feels able to withdraw the amendment.
Baroness Hamwee: I had thought that the Minister would cover something that I wanted to put to him but did not ask before the Division was called. If a subcommittee is not mandatory—as I understand the clause it would not be mandatory but discretionary— would it be appropriate to prescribe numbers? Would it not be odd to say that one can have a sub-committee, but if you do, it must be of a certain type or size?
Lord Bassam of Brighton: I can think of many good reasons why the number should not be fixed. There are issues such as reflecting the balance on the authority as well. In some parts of the country there may be more than four or five parties on an authority. Of course, in those instances, size matters because of the balance of the parties and so on. So there are some practical difficulties in that situation. I believe that it would be a mistake to fix law as to the numbers and sizes. In practice we believe that most local authorities will want to have a committee of between three and five members, particularly as regards issues of misconduct. The facility is there to do so by regulation.
Baroness Hanham: I thank the Minister for those comments. My main concern is that any kind of inquiry can be intimidating and to have to face more than five of your own colleagues—or potential colleagues—would be a serious imposition. It is also true that standards boards are not made up of councillors only; they are made up of people who are external and maybe that should be taken into account. I hear the Minister's slightly sympathetic voice about keeping the matter under review, particularly in relation to misconduct. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanhammoved Amendment No. 219:
Page 66, line 39, after "(1)," insert—
"( ) the nature of its business,"
The noble Baroness said: This is a minor amendment. If one is to stipulate the number of members of sub-committees, perhaps one should state the nature of their business. I beg to move.
Lord Bassam of Brighton: I can see the point but I do not believe that the amendment serves a useful purpose. The standards committee will want to be able to specify the terms of reference of any sub-committee it decides to appoint. That is certainly the practice with

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which I am familiar in local government. I am not sure what purpose would be served by requiring that to be done. It is a matter of good practice in any event. In the Bill we are trying not to stipulate everything from the centre. I believe that this amendment falls into that category. I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Hanham: The Bill is fairly prescriptive, as we have tried to demonstrate all the way through. I do not believe that this amendment would make it any more prescriptive. However, it is a minor amendment and I shall withdraw it.
Amendment, by leave, withdrawn.
7.15 p.m.
Baroness Hanhammoved Amendment No. 220:
Page 67, line 24, at end insert "who shall be a senior member of his staff or of the Authority"
The noble Baroness said: This is more than a minor amendment. Where one delegates functions one must state to whom the function is delegated. It is important that the monitoring officer should not delegate to just anyone on his staff, but that the person with delegated authority should, by definition, be a senior member of the staff, or if not of the monitoring officer's staff, a senior member of the authority. I am sure that the Minister will tell me that such a matter should not be on the face of the Bill, but it needs to be provided for to ensure that there is no malpractice given that monitoring officers have considerable powers and authority. I beg to move.
Lord Bassam of Brighton: I understand the point made by the noble Baroness. The amendment would require a deputy monitoring officer to nominate a senior member of his staff or of the authority to conduct an investigation into an allegation of misconduct in circumstances where the deputy monitoring officer considers that he should not perform that function. A conflict of interest could arise; for example, if the deputy monitoring officer had given earlier advice to a member who was; the subject of an allegation.
There is a solution at hand. In our view, restricting the nomination to a member of the authority is unnecessary and unhelpful. In many cases the most suitable person to conduct an investigation could be a monitoring officer from another authority. I can see that that would be a way round the problem and I see also that the problem could be a real one for a small district council. I suspect that is part of the reason why the noble Baroness has raised the issue. A senior monitoring officer from an adjacent or nearby authority would have the necessary skills and expertise while being well removed from any potential conflict of interest. We know that many local authorities are now developing reciprocal arrangements so that that kind of support can be provided.
It may also be sensible in some circumstances for councils to commission someone from outside the local authority world altogether, perhaps from a local firm of solicitors or another profession where there is
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similar expertise of conducting investigations. I believe that that would help those small authorities that do not have sufficient capacity for these important matters, and it could perhaps help a parish council in its deliberations in the same way. I hope that that answers the point and deals with the issue that the noble Baroness has raised.
The Earl of Caithness: I have listened carefully to what the Minister has said. That is a possible way out, but it does not give any guidance to the council. It does not have to follow what the Minister has said. What is to prevent it putting in someone who does not fulfil the high standards that the Minister and my noble friend want?
Lord Bassam of Brighton: The answer is already in the legislation. The national standards board will issue guidance that will cover the eventuality.
Baroness Hanham: The reply given to my noble friend reassures me. So long as we can be sure that those matters will be dealt with in guidance, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 221 not moved.]
Clause 114 agreed to.
Clause 115 agreed to.
Clause 116 [Overview and scrutiny committees: voting rights of co-opted members]:
Baroness Hamweemoved Amendment No. 221 A:
Page 69, line 18, after second "committee" insert "or for the proportion of members not so co-opted required to take part in any vote (for which purpose an abstention shall be counted as a vote) for the vote to be valid,"
The noble Baroness said: Amendments Nos. 221A and 221B relate to Clause 116, which gives voting rights to co-opted members of overview and scrutiny committees. My amendment, which is not very elegantly phrased but is the best that I could do, would allow for a minimum proportion of those who are not co-opted members for any vote to take effect. I could not think of a term for such members; they might be called "conventional", "principal" or "elected" members. I was concerned that if the vote was based on numbers alone, depending on the numbers and the forum, one could find that the co-opted members overruled the views of the elected members. That did not seem appropriate.
Amendment No. 221CC relates to a very different matter. It would insert a new clause relating to goods, facilities and services provided to elected and co-opted members under the Disability Discrimination Act 1995. I doubt that there would be any difference between your Lordships as to the desirability of encouraging and facilitating the involvement in elected office and participation in local authorities of everyone who can contribute. Disabled people face particular hurdles.
The RNIB suggested that the Government might take the opportunity to facilitate such an involvement by extending the Disability Discrimination Act. I

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understand that the Government, in a response to a disability rights taskforce, agreed to implement the legislation when legislative time permitted—perhaps not in these words but in this spirit. As I said before, this Bill might be called the "Local Government (Here's One I Prepared Earlier) Bill".
The report said that the measure would not result in significantly increased costs for local authorities. I confess that I have not checked that with the Local Government Association. We refer to facilities for Braille, for example. Local authorities often have to provide such services, although perhaps on a sporadic basis, for members of the public. The report also suggested that the duty should cover co-opted members of council committees. I hope that, even if not in this form, the Government would support such a proposal. I beg to move.
Lord Rooker: I take the amendments as presenting two separate issues. The first amendment relates to the proportion of people voting in scrutiny committees. We do not believe that is necessary, given the way in which the clause is drafted. I realise that the clause is very long, running to almost two pages, and is very complicated. However, we do not believe that it needs to be amended to provide for what the noble Baroness seeks. It already provides for that.
Granting voting rights to co-optees is optional. If authorities are concerned about allowing unelected members of committees to vote, they are under no obligation to grant them voting rights. Authorities are also able to define in their schemes the maximum number of co-optees with voting rights. In that way, the risk, to which the noble Baroness alluded, of unelected members dominating the votes of overview and scrutiny committees, can be prevented by the local authority itself. Local authorities can reach their own decisions whether to have co-optees and give them a vote, and how many of them to give a vote to. The noble Baroness's objective is already in the clause. We certainly do not want to rule out co-optees, because of the expertise that they bring, but the noble Baroness does not seek to do that anyway.
I am far more negative about Amendment No. 221C. I shall read the Committee the end of my speaking note. The extent of the Disability Discrimination Act is a matter for my right honourable friend the Secretary of State for Work and Pensions. We do not therefore believe that the Local Government Bill would be the correct legislative vehicle to extend the Act to apply to local councillors or to co-opted members of local authorities.
The idea of a local authority discriminating against one of its councillors with a disability would be remote—or I hope that it would be remote. Parliament has given a good lead in what we have done in the past decade for colleagues in both Houses. We do not need to take any lessons from local authorities. Of course, I take the message, but it is simply too late to consider changing the legislation in the context of this Bill. It would be a matter for the Secretary of State for Work
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and Pensions and dealing with the DDA as a whole. I am sorry to sound so negative—the spirit is there, but the will is not in this Bill.
Earl Russell: Could the Minister go so far as to report this discussion to his right honourable friend the Secretary of State for Work and Pensions?
Lord Rooker: Certainly. The fact that the amendment was tabled and the remarks in favour of it will certainly be drawn attention to. The issue has entered the government machine, so it will certainly be drawn to the attention of my right honourable friend the Secretary of State for Work and Pensions.
Baroness Hamwee: I hope that the Minister will explain that the proposal is not a matter of local authorities discriminating, but of setting best practice, which is very much the atmosphere of local government legislation. It involves facilitating people who have anything to bring to the party to be able to do it, and encouraging them.
Discrimination can take all sorts of forms, some of which do not fall within generally accepted definitions of discrimination. Simply not going out of one's way to help those with a disability to overcome it and contribute what they have to contribute in my view often means that, as a society made up of different communities, we fail to make use of what is available to us. I am thinking not of overt discrimination but of failing to be imaginative and to encourage all members of the community to take part in local government—which, in my view, badly needs fresh blood.
On Amendments Nos. 221A and 221B, I am more reassured on the Minister's second point about numbers than I am about the fact that co-optees are optional. Once the arrangement is in place, it would take a brave local authority to undo it, and I would not particularly want to encourage them to do that. The point that he makes about numbers is a good one. If they cannot do the arithmetic, they may get themselves into other trouble too. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 221B not moved.]
Clause 116 agreed to.
Baroness Blatch: It is now just 7.29 p.m. and we are about to start on a controversial amendment. Is it appropriate to do so when we have another day tomorrow to consider the Bill?
Lord Rooker: I am not prepared to move to adjourn the Committee before the due time because it will be held against me that I did not make full use of all the time available.
Baroness Blatch: The noble Lord did so on the last occasion the Committee met.
Lord Rooker: We must wait until 7.30 p.m.
Baroness Hanham: This is practically an example of filibustering. Would the noble Lord like to take us through the remaining 30 seconds?
Lord Rooker: I have a little Latin to quote to the Committee—is it Latin or French? The lawyers will tell me—to accompany my comment that this may be a convenient moment for the Committee to adjourn. I have heard the words sine die, but that means "don't ask me", whereas in reality I am adjourning the Committee until tomorrow afternoon.
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I apologise in advance for the fact that I shall not be present. The Government will be led by my noble friend Lord Bassam, ably assisted by my noble friend Lord Evans.
Baroness Hanham: I should draw the attention of the noble Lord to the fact that the noble and learned Lord the Lord Chancellor has recommended that, in legal courts, the term sine die should no longer be used because no one understands what it means.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): The Committee stands adjourned until tomorrow at 3.30 p.m.
The Committee adjourned at half past seven o'clock.