HL Deb 14 June 1993 vol 546 cc1283-93

7.20 p.m.

Baroness Flather

My Lords, I beg to move that the House do now resolve itself into a Committee on this Bill.

Moved, That the House do now resolve itself into Committee. —(Baroness Flather)

On Question, Motion agreed to.

House in Committee accordingly.

Clause 1 [Power to provide advice and assistance]:

Baroness Flather moved Amendment No.

Al Page 1, line 16, at end insert: ("( ) Before giving any general authorisation under subsection (3) above, the Secretary of State shall consult with such persons appearing to him to represent local authorities as he thinks appropriate.").

The noble Baroness said: In moving Amendment No. Al, I wish to speak also to Amendment No. 1A. The amendments are the result of discussions between myself, Jim Lester (the Bill's sponsor in another place) and the Government. Jim Lester and I have been impressed by the detailed consultation and constructive co-operation between central and local government that have been so much in evidence during the passage of the Bill. Jim attended a number of meetings at which he saw at first hand just how constructive that co-operation was.

There have been many occasions when the two sides together have spotted difficulties or differences in interpretation or view and have worked together to overcome them. I am told that that happens a great deal between central and local government these days and I am very pleased to hear it. It is a shame that there is not greater awareness of this behind-the-scenes co-operation. It is because we so much wish to see central/local government co-operation in implementing the powers provided by the Bill after it is enacted that I have tabled Amendments Nos. Al and 1A.

Amendment No. Al would require the Secretary of State to consult representatives of local authorities —including, I imagine, the local authority associations—before giving a general authorisation under the Bill. Noble Lords will recall that the Secretary of State proposes to give a general authorisation that will permit local authorities to carry out a wide range of activities under the Bill without having to seek specific consent. Amendment No. 1A would provide for the Secretary of State to provide local authorities with guidance about the way that their powers under the Bill can be exercised.

The Government have consulted the associations on the draft model of the general authorisation and have made clear that they will consult again after the Bill is enacted and before issuing the authorisation. Similarly, the Government have undertaken to issue guidance notes after consultation with the associations to help local authorities understand and use the new powers that the Bill will give them. Ministers have told me, however, that they have no objection to their commitment to consultation and the issue of guidance being put on the face of the Bill. They are happy that their intention to work closely with local government and the intended tone of that relationship should be flagged up in this way. I commend the amendment to your Lordships. I beg to move.

Lord Graham of Edmonton

Perhaps I may begin on this side of the Chamber by expressing to the noble Baroness our deepest sympathy at the circumstances which led to the postponement of this stage of the Bill from an earlier time. We understand, and we certainly grieved with her at her sad loss. We fully understand that she is determined to proceed with the Bill and we are very glad indeed that she has taken this opportunity. We on this side fully recognise that the word that she used more than once, "consultation", can be genuinely and sincerely applied to what has gone on behind the scenes in this matter. I am told that the amendment, which the noble Baroness has moved, cements an approach which the department has taken throughout the Bill. The local authority associations —she will know that I refer to the AMA, the ADC, the ACC, CoSLA and the LGIB—all share my view (although I certainly do not pretend to speak on their behalf) that the action of the Minister and of the officials in the department is most welcome indeed.

We understand that guidance, which will be helpful in a number of areas to ensure that powers are used to the fullest extent, is implied in these amendments. But it would be useful if the Minister, in his normally courteous, watchful and helpful mode, could give to the sponsor an assurance that the guidance will not limit the proper discretion which local authorities will wish to exercise within the framework of the new power. I also ask for some indication of whether or not the guidance powers may be capable of use in the future to give policy direction to the work of local authorities, for instance by stretching the desirability of assistance to particular areas of the world or types of country. In other words, we can fully endorse the purport and intent of the Bill and of the amendment. But I wonder whether the Minister has in mind that the amendment may be a useful peg for doing more than simply facilitate and enable. Perhaps he will say whether the Government have any such intention.

Viscount Goschen

The effect of my noble friend's Amendments Nos. Al and 1A is to build into the Bill a requirement for both consultation and guidance on the working of the Bill. Amendment No. Al would require the Secretary of State to consult representatives of local government before giving a general authorisation under Clause 1(3) of the Bill. Amendment No. 1A would require the Secretary of State to provide local authorities with guidance about the exercise of the power that the Bill provides.

My noble friend and the Government have worked closely together on this matter. Our intention has been to signal the Government's strong wish to take account as far as possible of local authority concerns about the operation of the power that the Bill provides. This has been our approach throughout the course of the Bill, as the local authorities have acknowledged on a number of occasions. Constructive co-operation between government and the local authority associations on this Bill exemplifies the greatly improved relationship between central and local government in recent times.

In answer to the questions of the noble Lord, Lord Graham, once the Bill is enacted the Government will consult the local authority associations on the proposed general authorisation. After that has been issued we shall also draw up, with their help, the guidance note which we hope will prove useful to local authorities exercising the power under the Bill. This will be an explanatory note explaining in simple language what, for example, the general authorisation covers, and when and how an authority may need to get specific consent. The guidance note will be discussed in detail with the associations and will be as helpful as possible. We therefore support the amendments.

Baroness Flather

Perhaps I may first thank the noble Lord, Lord Graham, for his kind words of sympathy. I shall attempt to answer his question. As I understand it, the amendment will strengthen the process of consultation. By putting it on the face of the Bill the Government want to flag the consultation process and make sure that the final outcome is achieved in fullest consultation rather than in any kind of one-sided way. I hope that the noble Lord will feel that it is a very worthwhile amendment.

On Question, amendment agreed to.

Lord Graham of Edmonton moved Amendment No. 1:

Page 1, line 16, at end insert: ("(3A) The power conferred by this section shall not be regarded as restricting those conferred by any other provision including the following—

  1. (a) section 137 of the Local Government Act 1972 (power to incur expenditure for purposes not otherwise authorised); and
  2. (b) section 83 of the Local Government (Scotland) Act 1973 (power to incur expenditure for purposes not otherwise authorised).").

The noble Lord said: This amendment has been presaged as the "without prejudice" amendment. Its purpose is to protect the existing powers to engage in overseas activities from being affected by—in other words, effectively submerged within—the creation of the new power, such activities thereby being made subject to the consent of the Secretary of State. The Minister and the noble Baroness are well aware that the local authority associations have insisted that they are not very happy in the requirement that their overseas activities must have the consent of the Secretary of State. Nevertheless, recognising the Government's insistence on that point, earlier amendments designed to delete the consent requirements were not pursued in this House. The local authorities remain adamant, however, that existing overseas activities carried out under other powers must not be allowed to come within the consent requirement.

Earlier debate has not reassured them that the Government recognise other powers and do not intend to make all local authority overseas activities subject to consent by the Secretary of State. Such activities, whether related to provision of information to overseas bodies about UK local government or concerned with economic development or promotion of twinning and other partnership links have been recognised in the past—for example, when reassurances were provided to local government during the passage of the 1989 Local Government and Housing Act, when circumstances indicated that recognition was appropriate—but have been denied at other times. During the earlier debate the noble Baroness, Lady Flather, came near to suggesting that no other powers exist. Doubtless there is scope for debate, but local government lawyers recognise that there are other powers under the Local Government Act 1972.

Sections 111 and 112 of that Act empower an authority to employ staff to engage in work which is: conducive or incidental to, the discharge of any of their functions". Involving staff in overseas projects, in professional exchanges and training assignments which bring mutual benefits both to the UK authority and to the overseas partner can be recognised as a perfectly legitimate activity under the provisions. Then, under Section 137 which is well known to those involved in local government matters, there is a discretionary power to incur expenditure which in an authority's opinion is in the interest of and will bring direct benefit to its area and all or some of its inhabitants.

That is the nub of the matter. Local authority reservations may perhaps be subsumed in acceptance of the fact that the noble Baroness, Lady Flather, and the Minister have indicated that there will be meaningful consultation before guidance is given as to what is or is not enabled or permissible. That is when these matters could very well be resolved.

I move the amendment to make the point but I do not intend to press it further. I hope that the noble Baroness and the Minister will recognise that local authorities do not wholly accept that there is no need to make these points. They wish to make sure that the powers under the Bill are not used later to prejudice or inhibit the present powers which they enjoy. I beg to move.

7.30 p.m.

Baroness Flather

I am grateful for the comments that the noble Lord made about not pressing the amendment. However, I should like to take up one or two of his points. I understand that twinning was always possible in any event under the original legislation and it will continue under this or the original legislation. Twinning is not an issue in this matter. We should not bring it into the discussion because I do not believe that it is affected by the Bill.

With regard to protecting existing powers, the argument about the "without prejudice" clause was made in another place. It was touched on in this House at Second Reading. In another place the Bill's sponsor, Mr. Jim Lester, and the Minister agreed to reconsider the provision carefully before Committee stage in this House if the local authority associations could provide further information about the powers which might be in jeopardy without such a clause. I believe that that is the noble Lord's point.

So far as I am aware, the associations have not been able to come up with any further information. Amendment No. 1 would prevent the Bill from restricting any powers, including those conferred by Section 137 of the Local Government Act 1972 in England and Wales or Section 83 of the Local Government (Scotland) Act 1973 in Scotland. But as I understand it, neither the Audit Commission's lawyers, nor the Government's, nor the Local Government International Board's lawyers have been able to demonstrate that either Section 137 or Section 83 gives the power to provide technical advice or assistance overseas. That is precisely why we are considering the present Bill.

If Sections 137 and 83 cannot be used to provide advice and assistance overseas, what would the noble Lord's amendment achieve? Do we need a "without prejudice" clause in respect of powers which are thought not to exist at all in the first place?

Amendment No. 1 would not only be pointless. It would be improper because it would imply that in fact there is a power to provide advice and assistance overseas when all the evidence is to the contrary. That could only be misleading and cause confusion. This is an unnecessary amendment and I ask the noble Lord to withdraw it.

Viscount Goschen

The intention behind Amendment No. 1 is to introduce into the Bill a "without prejudice" clause. The argument for it is that, by providing a specific power to provide overseas technical assistance, the Bill will remove local authorities' existing ability to do that work on the basis of general discretionary powers, such as in Section 137 of the Local Government Act 1972 and Section 83 of the Local Government (Scotland) Act 1973, or other specific powers, such as the power under Section 33 of the Local Government and Housing Act 1989 for the promotion of economic development.

This has been an area of concern to the local authority associations throughout the passage of the Bill. At Report stage in another place my honourable friend Mr. Squire, the Minister at that time, explained why the Government remained unconvinced of the need for such a clause but agreed to review the case if the local authority associations were to provide further information. In fact the associations failed to come up with any new information on that point, save to point out that a "without prejudice" clause in respect of Section 137 has been conceded by the Government in the Leasehold Reform, Housing and Urban Development Bill.

It may be helpful to the House, and indeed to the associations, if I set out as clearly as possible how the Government see the position. Section 137 of the 1972 Act permits an authority to incur expenditure which in its opinion is in the interests of and will bring direct benefit to its area (or any part of it) or all or some of its inhabitants. However, the power is limited in the following ways. First, an authority may not rely on the section for a purpose for which it is authorised to incur expenditure by any other power whether that power is conditional or unconditional. Secondly, the direct benefit to its area or part or all or some of its inhabitants must be commensurate with the expenditure incurred under Section 137. We do not see how incurring expenditure in providing advice and assistance to overseas bodies can be of any direct benefit to the inhabitants of the authority's area, let alone benefit commensurate with the amount spent.

Turning to Section 33 of the 1989 Act, that provision gives authorities the power to take such steps as they consider appropriate for promoting the economic development of their area. There are various restrictions on the power contained in the Act and in regulations made under it. We find it difficult to imagine how the power which permits the authority to take steps to assist in setting up a commercial undertaking in the authority's area and creating opportunities for employment in that area can be said to give an authority power to provide an overseas body with advice and assistance.

Surely the point is that there are serious doubts about the legitimacy of using these existing powers for overseas technical work, especially since Sections 137 and 33 and the equivalent Scottish legislation are all intended to operate specifically to the benefit of the areas or inhabitants or of the authority concerned. Neither the Audit Commission nor our own advisors have been able to find any existing powers for technical assistance. That is why we need the Bill. It is difficult to see the purpose of a "without prejudice" clause in respect of powers when there are substantial grounds for doubt about their existence.

To turn to the "without prejudice" clause in respect of Section 137 in the Leasehold Reform, Housing and Urban Development Bill, this is a case where the section may be being used to support the provision of certain welfare services to old people in a local authority's area. Such a use is self-evidently for the direct benefit of the inhabitants of the authority's area and naturally Ministers wish to see such services continuing. The "without prejudice" provision is being included because there was a danger that the express power in the Bill for authorities to provide welfare services to their own tenants would prevent the authority providing such services for other elderly people in their area in private sector accommodation.

In the case of the Bill before your Lordships today, the Government remain unconvinced that Sections 137, 83 or 33 can be relied upon legitimately, and therefore enactment of the Bill will alter the position.

Finally, it may be helpful, in view of the comments made by the noble Lord, Lord Graham, for me to make quite clear the Government's view that the powers under which the educational, cultural and sporting links commonly known as "town twinning" are carried out are unaffected by the Bill. The Government's view is that it remains unnecessary and wrong to introduce a "without prejudice" clause in respect of powers not thought to exist. Such a clause would achieve nothing and would reintroduce an element of confusion into an area which the Bill seeks to sort out and clarify once and for all. We are pleased therefore that the noble Lord, Lord Graham, indicated that he does not intend to press the amendment.

Lord Graham of Edmonton

I appreciate the two responses given by the Minister. It was not my intention to imply that the local authorities assert that there is already a clear power to engage in overseas assistance. There is not. There is a need for clarification. We accept that the Bill seeks to give that clarification.

However, the authorities are concerned that, in so clarifying, the powers which they already have should not be subsumed within the powers provided by the Bill. If we have an addition, rather than a substitution for or consolidation of, then the associations will be happy. We are concerned that the new power contained in the Bill, which imposes certain ministerial controls, will seek to eclipse the other powers. Indeed, the powers under Section 137, used extensively for a wide range of international activities, seem to disappear.

Others outside the Chamber who are closer to the action and better qualified than I will study what the Minister and the noble Baroness said. I repeat that there is no intention of delaying what is a good Bill and I appreciate the parliamentary reality of doing anything more than expressing reservations, which I do with great good humour. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Flather moved Amendment No. 1A:

Page 1, line 23, at end insert: ("( ) The Secretary of State shall provide local authorities with such guidance about the exercise of their powers under this section as he thinks appropriate.").

On Question, amendment agreed to.

7.45 p.m.

Lord Graham of Edmonton moved Amendment No.2:

Page 2, line 5, leave out ("or").

The noble Lord said: For the convenience of the Committee, when moving Amendment No. 2 I shall speak also to Amendments Nos. 3 and 4. Amendment No. 4 substantially meets the concerns raised and flagged which are contained in Amendments Nos. 2 and 3.

Those concerns are that it appeared to those who are closer to the action that the smaller authorities may be excluded from some of the benefits under the Bill. The amendment was presented to me by the National Association of Local Councils. It is not one of the "big boys" in the local authority organisations nexus; nevertheless, it is deserving of some consideration.

Amendment No. 4 enables the Secretary of State by order made by negative resolution—which we understand will provide scope for interpretation and action—to add any other type of body to the list of bodies which are "local authorities" gaining power under the Bill. Although there is nothing specific about putting in what I want, the amendment gives the opportunity to extend what I will not call a restrictive list, but a list that excludes one or two other bodies. We believe that it is a satisfactory response, given that the desirability of incorporating parishes has been seen by the sponsors as needing to deal more with future eventualities than current practice.

In moving Amendment No. 2, I have spoken also to Amendments Nos. 3 and 4 and I am sure that there will be no dispute about the outcome.

Baroness Flather

As the noble Lord, Lord Graham, said, the three amendments are closely connected. I shall be speaking to Amendment No. 4 and do not propose to accept Amendments Nos. 2 and 3. I shall wait till we reach Amendment No. 4 and answer the noble Lord's points at that stage.

Viscount Astor

It might help, as they are grouped together, for my noble friend to speak to Amendment No. 4 at this stage.

Baroness Flather

I apologise for my lack of procedural knowledge. The question of whether parish and community councils should be covered by the Bill was considered briefly in another place, and the Bill's sponsor and the Minister agreed to consider the case before your Lordships' Committee if the local authority associations could provide further information.

I have seen the helpful letter from the secretary of the National Association of Local Councils. In it he mentions overseas visits by NALC staff to advise other bodies and the expertise some parishes have in recreation, including running public halls and community centres. He also points out that some larger parish councils have a few officials, some of whom will have had experience with county and district councils in the past.

While I value the role of parish and community councils in our national life, I do not believe that a sufficiently strong case has been made for the Bill to be extended to cover them. I am not convinced that they have a significant contribution to make in providing advice and assistance overseas.

The work of NALC staff does not require to be covered by the Bill since they are not local authority staff. Parishes have the power to pay for sending their councillors abroad and for receiving distinguished guests from abroad. Realistically, I would expect there to be ample scope for exchange of information during those visits. Therefore I do not agree to the need for Amendments Nos. 2 and 3 and ask the noble Lord not to press them.

I recognise that that will come as a disappointment to the noble Lord and to NALC. It will also come as a disappointment to my noble friend Lord Jenkin, who was kind enough to write to me with his views. But let me now offer them some comfort. I do not think that we should close the door entirely on the possibility of adding parish and community councils to the legislation at some future time. We live in a changing and uncertain world. New information could come to light and the circumstances of parish and community councils could change. This Bill is likely to be on the statute book for some time and we cannot predict what changes may occur. We would be foolish, therefore, not to build in some flexibility.

So I propose that we keep the door open by providing the Bill with a power for the Secretary of State to add to the list of the types of authorities covered by the Bill by means of a statutory instrument, as it can be very difficult and take a long time to amend the law by primary legislation. Amendment No. 4, by providing a power to change the Bill by secondary legislation, would make it relatively easy to reassess the situation if changed circumstances warranted it. I commend Amendment No. 4 to the noble Lord and to the Committee.

Viscount Goschen

The purpose of Amendments Nos. 2 and 3 is to extend the provisions of the Bill to allow parish, town or community councils to provide advice and assistance to overseas bodies as respects any matter in which they have skill and experience.

The Bill's sponsors and the Government have been open to argument on this. As has been pointed out before, we have been at pains to take the local authority associations' minds on all aspects of the Bill and to accommodate their wishes if at all possible.

When Department of the Environment officials and my honourable friend the Member for Broxtowe met the associations on a number of occasions before Christmas, the question of including parish, town and community councils was raised by the associations, but not pushed very hard. My honourable friend pointed out to the local government side that parish councils do not employ technical officers. At that time the local government side did not pursue the matter further. On that basis we concluded that it seemed unlikely that parish, town and community councils had much to contribute to the provision of technical assistance abroad.

By Committee stage in another place, however, the associations had apparently become convinced that it was important for the Bill to be extended to cover parish and community councils. As my honourable friend the Minister remarked at the time, it seemed a little odd that the associations should press for parish overseas powers to be extended when they had resisted extension of these powers closer to home. However, it was agreed that if the associations could demonstrate that some parishes, towns and community councils do have the ability to provide technical assistance to overseas bodies, we would consider the matter again.

The Secretary of the National Association of Local Councils has now written to the Department of the Environment setting out the case for extending the Bill to cover parish and community councils. In a very clear and helpful letter he explained, first, that some larger parishes (that is, town councils) do have full time staff with technical expertise; secondly, that their experience lies mainly in the provision of recreation facilities including parish halls and community centres; thirdly, that some town councils have populations comparable to those of many local authorities abroad; fourthly, that there are already often inquiries from overseas about the operation and role of parish councils; and, finally, that if the Bill were amended only those parish councils with a real contribution to make would take advantage of it.

NALC has suggested that fears about inappropriate activity by parishes could be met by including them in the Bill but not in the proposed general authorisation. Parishes would therefore need to seek the specific consent of the Secretary of State. NALC has also suggested that all parish applications should be routed through NALC in order for it to weed out the inappropriate and ensure that only those with a realistic chance of success were put to the Secretary of State.

The Government are grateful to NALC for its helpful and constructive views and have considered the matter carefully. But our view is that there is nothing in its letter which has altered views of the Government's, or the Bill's sponsors, that the scope for parish and community councils to provide advice and assistance within the terms of the Bill is very limited. Moreover, we do not believe that the Bill would prevent them, or NALC, doing the many useful things they are doing legitimately at the moment. We are, therefore, unable to agree to the noble Lord's amendments.

The purpose of my noble friend's Amendment No. 4 is to provide in the Bill a power for the Secretary of State to add, by means of statutory instrument, to the list of types of local authority covered by the Bill. My noble friend has explained her view, and that of the Bill's sponsor in another place, that while she is not convinced of the case for amending the Bill to cover parish and community councils, she does not wish to shut the door entirely on this proposal.

The Government's view is that there is indeed merit in this cautious and sensible approach. My noble friend's amendment would enable the list of types of local authority covered by the Bill to be added to without recourse to primary legislation. I am sure the Committee will agree that this builds in a useful element of flexibility. The Government agree that it is sensible to keep the door open to argument in this way, and we hope that the Committee will accept my noble friend's Amendment No. 4.

Lord Graham of Edmonton

I am grateful for the comments of both the noble Baroness and the noble Viscount. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Baroness Flather moved Amendment No. 4:

Page 2, line 24, at end insert: ("( ) The Secretary of State may by order made by statutory instrument amend subsection (7) or (8) above so as to add any body or description of body to the bodies which are local authorities for the purposes of this section; and any statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

House resumed: Bill reported with amendments.