Local Government (Wales) Bill [H.L.]

HL Deb 10 February 1994 vol 551 cc1757-800

Consideration of amendments on Report resumed on Clause 8.

Viscount St. Davids moved Amendment No. 26: Page 6, line 18, leave out from ("before") to ("take") in line 19 and insert ("1st October 1997").

The noble Viscount said: My Lords, the Government acknowledge that a five-year time-lapse to ensure that all communities have both a Welsh and an English name, where generally accepted alternative forms exist, was perhaps a little too generous. Accordingly we have reconsidered and now bring forward this amendment which will reduce the period to 18 months. We feel that this is appropriate since it will enable principal councils to undertake consultations in the appropriate community areas, with the community councils (where they exist) and with specially convened community meetings where community councils do not exist—which is the case in over 130 community areas in Wales. Lest there be any confusion about the matter, I should point out that the naming provision in this clause relates to the community areas, not the community councils. The fact that there are so many areas without councils is why responsibility for ensuring that there are Welsh and English versions is being assigned to the principal council. I beg to move.

Lord Elis-Thomas

My Lords, I thank the noble Viscount for his amendment and for implementing the spirit of an earlier amendment that I moved at Committee stage. Clearly we have had two great victories this evening. Powys will still be called Powys; and the Government have accepted the spirit of the naming of community councils. I thank the noble Viscount for that.

Lord Prys-Davies

My Lords, we also welcome this amendment. It requires the community council to be named by 1st April 1997. We believe that is acceptable. In Committee I raised a number of other specific questions on the clause. I just want to place on the record that I have received a letter from the noble and learned Lord the Lord Advocate, which is satisfactory.

On Question, amendment agreed to.

Clause 9 [Establishment, dissolution and grouping etc. of community councils.]:

[Amendment No. 27 not moved.]

Clause 12 [Community councils: supplemental provisions.]:

Lord Elis-Thomas moved Amendment No. 28: Page 9, leave out lines 36 and 37 and insert: ("(i) in case of the establishment of a community council such number as is equal to 30 per cent of the local government electorate or, if that number exceeds 300, is 300; and (ii) in case of the dissolution of a community council such number as is equal to 50 per cent of the local electorate or, if that number exceeds 500, is 500.").

The noble Lord said: My Lords, this amendment seeks to ensure that in those community areas that do not have community councils the procedure for establishing a community council is made easier, and the dissolution process is made somewhat more difficult. This amendment is, as it were, a second or third tier following the two previous amendments which we debated before dinner referring to the position of community councils. I would argue that this amendment seeks to put into effect what the noble and learned Lord the Lord Advocate advanced in his speech opposing my earlier amendment; namely, that application of the principle of establishing a community council in those areas which do not have them is made easier by this amendment.

There has been a lot of concern both on the part of the Wales Association of Community and Town Councils and its sister organisation, the National Association of Local Councils, about the position whereby community councils can become dissolved by a snap vote on a rather narrow local issue. Therefore I believe that it is advisable that where that structural government exists, it should be more firmly established, and where it does not exist it should be more easily established. I beg to move.

Lord Prys-Davies

My Lords, I should like to support the amendment and in particular its second paragraph. Under existing law a council can be dissolved without any advice or review by an external body. As the Bill now stands it can be dissolved with the consent of just 30 per cent. of the electorate, or 300 if the electorate exceeds 300. That is far too low.

As we have thought almost from the beginning, it is an invitation to instability. We support the amendment and in particular the second limb of it, because, as the noble Lord, Lord Elis-Thomas said, it will prevent the hasty dissolution of a community council.

Lord Rodger of Earlsferry

My Lords, I have already acknowledged the important role that community councils play, where they exist. Nonetheless, I cannot accept the amendment.

I do not think it is correct to say that the amendment will make it any easier for a community council to be established than does the proposal contained in the Bill. The effect of the amendment is to tease out the provisions of subsections (4) and (5) of Clause 12 so as to retain for the establishment of a community council the figures in subsection (5) but to substitute in the case of dissolution the figures in the amendment.

As I understand it, the effect of the amendment would be to leave the establishment of community councils on the same basis as proposed in the Bill. Nonetheless it would have an effect in the case of dissolution.

However, it is important to notice what in fact the Bill provides; namely, that in subsection (4) of the clause: At any community meeting at which there is discussed a proposal … for the dissolution of a community council … a decision to hold a poll on the question shall be effective only if not less than the required number of local government electors is present and voting". That number is then specified in subsection (5).

But the decision at such a meeting is simply a decision to hold a poll. The issue of whether or not the community council should be dissolved is a matter that would then be determined at a poll. With the greatest possible respect to the noble Lord, Lord Prys-Davies, I believe that it would be wrong to suggest that somehow or other the dissolution of a council could be achieved simply upon the voting figures in subsection (5). On the contrary, that is simply what is required to put the issue in front of the electorate. At the end of the day it is for the electorate to decide in both cases whether or not a community council should be established or whether or not it should be dissolved.

In my submission that is the correct way to look at the matter. A council should not be forced on a community if it does not wish it. The community should not be forced to retain one if on a poll the majority of the electorate do not support it. The proposals in the Bill are a very secure basis for a democratic decision on both the establishment and the dissolution of a council. I ask the noble Lord to withdraw his amendment.

8.15 p.m.

Lord Elis-Thomas

My Lords, I find it a curious argument that a community may argue that it wishes to have a community council or it does not; in other words, its identity as a community may or may not be related to a political structure. Earlier in other parts of the debate the Government have taken a very strong view that whether or not a community wishes to remain a community or to identify itself politically is a matter for it to decide. Here we have an inconsistency.

It seems to me that in the creation of a principal council it is not a matter for the communities which constitute areas, shires or counties to decide to maintain their integrity or their political structure. In the case of Montgomeryshire or Merioneth or whichever of the other authorities we may refer to, it is not for the community to decide that it wishes to express itself in a political authority. However, when we come to community councils it is apparently for community areas to wish to express themselves and for them alone.

That exposes two aspects of the Government's attitude to the Bill. First, they do not really believe that community councils are an integral part of local government structure; and, secondly, it is clear that the principle of local democracy applies where it is least effective and not where it might be most effective in exercising political influence.

Having made what I suspect is in effect almost a Second Reading speech, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [General provision for transfer of functions]:

Lord Williams of Elvel moved Amendment No. 29: Page 13, line 21, leave out ("or by any instrument under").

The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Prys-Davies. In Committee we had some trouble with subsection (3) of Clause 17 and indeed with the whole of the clause as it stands. I recognise that the amendment that I moved Committee was in the nature of a probing amendment. It had certain defects which the noble and learned Lord quite properly pointed out. But I believe that it is right to return to this matter.

I asked the noble and learned Lord to have a look at the wording of Clause 17(3) before Report stage. He has done that and very kindly written me a letter. That letter was dated 8th February 1994 and I have not had a great deal of time to read it. But I am bound to say that even if I had had all the time in the world to read it I might not understand it any better than I do at present.

Clause 17 declares the general intention to transfer to the new principal councils every current local authority function contained in any relevant legislative provision. That is perfectly clear in subsection (1). Subsection (2) is equally clear. It is a general provision. Therefore, prima facie this is a wholesale transfer of each and every current local authority function, however and wherever described, to each of the new principal councils. That is the function of the clause. That is what Clause 17(1) and (2) say.

If that is the case, there is obviously a question of why there needs to be a separate provision in Clauses 18, 19 and 20 (for planning) and Clause 21 (for highways, transportation, housing, public health and related matters). Those functions are subject to the general provision of the transfer of functions in Clause 17(1) and (2). I accept that in the case of overlapping functions such as planning, some specific clause for transfer may be required. That may be a case where one needs a clause such as Clauses 18 or 19.

But the problem with subsection (3) is that it has the power to negate completely subsections (1) and (2). In other words, subsections (1) and (2) state a clear principle, which I have just enunciated and which is perfectly clear. And subsection (3) gives power to the Secretary of State to negate that principle and not just by what he puts in the Bill, but also by any instrument under the Act. The object of the amendment and the wording is absolutely clear on that point. We feel that the provision of secondary legislation to negate what is a primary function of Clause 17(1) and (2) requires further explanation from the noble and learned Lord.

I accept that to leave out subsection (3) altogether would be wrong. As the noble and learned Lord pointed out in his letter—in the part which I understood—in Schedule 6, paragraph 20(13) there is a specific provision to the contrary; that is, a specific provision qualifying the general transfer which is contained in the Bill. That seems to me to be a perfectly sensible and reasonable thing to do because your Lordships can discuss that matter as and when we come to it.

But when we come to doing what is in the schedule, and instead of putting it in the Bill we have an order doing it, then I start to become a little edgy, for two reasons. First, the transfer of functions should be quite simple if we follow Clause 17(1) and (2). Secondly, the 1972 Act, to which the noble and learned Lord referred as being analogous to what is happening here, is in fact not analogous. That Act dealt with both England and Wales and with the transition from county, urban district, rural district, parish and community councils to county, district, parish and community councils. It is therefore a much more complex arrangement than simply the wholesale transfer of certain functions carried out by certain local authorities to another group with which the Bill is concerned. I do not believe therefore that the 1972 Act is a proper analogy.

I recognise that if my amendment is accepted it will negate subsection (6) of Clause 17, because that would be an instrument under the Bill and the Secretary of State would not have the power to make an order adjudicating between councils where there was doubt. I think the noble and learned Lord said that it was some kind of failsafe procedure. All I can do is to repeat what I said in Committee: it is a little odd to have to write failsafe procedures into every Bill. It is up to the Government to get the Bill right and if they get it right then we do not need a failsafe procedure.

The problem with Clause 17(3) is that it allows the Government to negate the general transfer in a manner which Parliament at the moment cannot foresee because the Secretary of State can do it by order rather than putting it in the Bill. Therefore functions can remain with the bodies that have them at the moment simply because the Secretary of State says that they will remain with that body, and that is an end to the matter. That is why this specific subsection is causing great anxiety and why I would welcome from the noble and learned Lord the Lord Advocate a justification of why that wording in regard to subordinate legislation should be in the Bill at all. I beg to move.

Lord Elton

My Lords, I listened with great interest and a certain amount of comprehension to the speech of the noble Lord, Lord Williams. I have an interest in the amendment, which at present is academic, as a member of the Delegated Powers Scrutiny Committee, which did not pick up the point. However, it is a related point.

As I see it, the provision contains the intellectual difficulty of double and triple negatives, with which I always have a problem. If I understand the situation correctly—and I believe I am in agreement with the noble Lord, Lord Williams of Elvel—the amendment would prevent the Secretary of State doing what he otherwise might do, which is to extend the effect of the Act to existing legislation after the Act has been put on the statute book; in other words, extending its effect beyond that which Parliament can foresee in authorising it. Therefore the extent to which the use of that power is limited elsewhere in the Bill seems to me to be crucial to the extent to which we should favour the noble Lord's amendment.

I shall listen with great care to hear whether my noble and learned friend is saying that that will not happen because the Government do not intend to do it, but he cannot answer for succeeding governments, or whether he is saying that the Government will not do it because the provisions do not permit it. I should be most grateful if he could show us the extent of the use of the power.

Lord Rodger of Earlsferry

My Lords, I hope that the difficulties that noble Lords felt with the provision are due to defects in my exposition rather than any defects in the clause itself. I start by saying that of course Clause 17(3) does not give power to make orders, as the noble Lord, Lord Williams, recognises. The power to make orders is the general power to be found in Clause 52. No doubt we shall come on to debate that.

In general terms the effect of an order-making power in connection with any Bill (or Act as it will be by then), is to give the Secretary of State power to make orders which carry forward the purposes of the statute. The purposes of this statute are to make provision in respect of local government in Wales and in particular to transfer functions and so forth.

Subsection (3) qualifies a general and comprehensible provision of subsections (1) and (2) of Clause 17, which provide in broad terms for a general transfer of functions. Then comes the qualification in subsection (3), and it says that, This section has effect subject to any provision to the contrary made by, or by any instrument under, this Act". Let us consider the words, "under the Act". The noble Lord, Lord Williams, acknowledged that the example which I gave was an example of that. The question then is what is intended by the words, "any provision … made … by any instrument under, this Act"? So far as possible the Bill provides, both in the general provisions of Clause 17 and elsewhere, as the noble Lord pointed out, for transfer whether generally or slightly more specific. But there are functions of local government the details of which are set out in secondary legislation. It would not be practical or indeed sensible, for the amendments to that secondary legislation to be contained in primary legislation.

What is envisaged is that there may be secondary legislation which is required to amend the existing secondary legislation which deals with the functions of the local authority. I accept also that there may be occasions where secondary legislation is used because, in going through the various statutes, certain functions have not been picked up. It is difficult to find all the references tucked away in legislation, so it is acknowledged that it may be used for that purpose also.

That is the kind of situation which is envisaged. The question then is: why, on looking through the Bill, one can make an instrument which provides that something should not be transferred? That is what the noble Lord is asking. The answer to that is most easily given if I suggest that there may be certain functions which should not be transferred or which it would not make sense to transfer.

For example, with the combination of county functions and district functions, there could be a situation where, under the existing system—with both the county and the district —there would be a power for the county to act in circumstances where the district failed to act—a kind of failsafe provision. In the transfer to the new unitary authority, there would be no room for the transfer of such a function to the county because one would no longer have two different councils. One would have only the one council. In that situation, it would make no sense for such a failsafe mechanism in the county to be transferred to the unitary authority because there would be only one authority. That is the kind of situation which is envisaged. There may be situations where there is a power which exists at the moment in one of the authorities which it would not make sense in the framework of the new unitary authority to transfer to that unitary authority. It may be that—

8.30 p.m.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for giving way. For the purposes of this clause it is irrelevant whether the function is defined in an Act or in an instrument. It is all included in subsection (2), so that part of the argument is irrelevant. If I may take the noble and learned Lord's example, there is a function which at the moment is exercised by a county, say, the failsafe: if a district does not do something, then the county can intervene. If the county is not going to exist, if there is to be a unitary authority, then the question of the failsafe falls automatically. Once you transfer to a unitary authority, you transfer to a unitary authority. So there is no question of using these powers.

Lord Rodger of Earlsferry

My Lords, with respect, it seems to me that the noble Lord makes my point. If one has two authorities, with one of them acting in a failsafe capacity, it does not make sense for the legislation to provide, as it would provide if only Clause 17(1) and (2) existed, that both sets of powers would transfer to the new authority. The noble Lord may say that there would be no reason to invoke it. Nonetheless, there would be an extraordinary anomaly on the statute book in that the new unitary authority would have inherited two incompatible powers—two powers—only one of which would ever have to be exercised. Lawyers may do foolish things but they should not have on the statute book something which is entirely redundant and something which would cause doubt in the minds of people who had to operate the provisions in the future.

It is to allow appropriate provision to be made by statutory instrument—in order to take away that unnecessary power —that under subsection (3) the transfer takes place subject to the provision—in that case the statutory instrument. That statutory instrument would provide, for example, that only one power—whatever it would be—would come across. Therefore it would provide that this fallback power would not transfer. There would be no reason for it to transfer. I would ask the noble Lord to consider this further because, in my respectful submission, it makes sense in that context.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for that exposition. It seems to me that we are getting down to a question of whether lawyers like something to be clean and clear. Perhaps I may take the noble and learned Lord's example ad absurdum. Authority A—a county council—has a failsafe over authority B, which is a district council. If authority B does not do something, authority A can step in and do it. All powers of authority A are transferred to authority B. This means that authority B—a unitary council—has powers not only to do the thing itself but actually to supervise its own doing of the thing. That may be untidy but it is nevertheless perfectly plain because authority A ceases to exist.

If the noble and learned Lord is saying—if I may take up the point made by the noble Lord, Lord Elton—that the only purpose of such an instrument made under Clause 52 is to clean up these small legal anomalies, and if he is prepared to give an assurance to that effect, I am perfectly happy, and I hope that the noble Lord, Lord Elton, will be perfectly happy. But I am rather more suspicious by nature than that. I should like the noble and learned Lord please, by leave of the House, to reply. If he cannot give that assurance, I should like him to tell us exactly how he sees this power being used.

Lord Rodger of Earlsferry

My Lords, with the leave of the House, I say very briefly that all that can be done is to use the powers which are given by the statute to make orders. There is no other power. The general power—apart from particular ones in particular clauses —is the power in Clause 52. That in itself is very limited to incidental, consequential, transitional or supplementary provisions. We shall come on to debate that clause in due course. All the authorities indicate that these powers are able to be used only in a very restricted way. The kinds of situations which we have in mind are those which I have indicated to the noble Lord. I cannot say that they will all be to do with fallback provisions, and so on. It is a technical provision to make sure that when the legislation takes effect and people have to apply it, they are not faced with something which is anomalous, hard to construe, hard to make sense of or hard to know how it is meant to work in a particular situation. It is to allow that kind of thing to happen. The power which is envisaged being used here would prevent the transfer of that kind of function. It is in that limited context, and I am quite happy to give that assurance.

Lord Elton

My Lords, before my noble and learned friend sits down, it may be that his last sentence covers this point but I shall have to read it in Hansard to make sure. He was pointing us to Clause 52 to reassure us and saying how limited the powers under the clause are. There are order-making powers elsewhere in the Bill, not least in Clause 30 which we shall be discussing shortly. The assurance that we need—I do not see why it could not be on the face of the Bill—is that this subsection relates to orders made under Clause 52. That would be an even neater and cleaner way of doing it. I am quite prepared to be told I am wrong because I am not a lawyer, and lawyers are always right. When they are right, I usually am wrong. But I should be grateful to my noble and learned friend if he would look at that.

Lord Rodger of Earlsferry

My Lords, I am happy to look at it but I should not like to give the assurance in those terms this evening because I would have to look at that more carefully. In broad terms, I am happy to give the assurance which I have already given. I would simply reassure noble Lords that the order-making powers are powers granted by Parliament. They can only be exercised in the terms which Parliament has granted. If the Secretary of State strays beyond those powers, they can be struck down by the process of judicial review, a process which, as noble Lords know, has become very effective in recent years.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for all his responses. I think that the argument is postponed until we get to Clause 52. As I said when I moved the amendment, subsection (6) of Clause 17 also contains an order-making power arbitrating between councils and therefore would be, as it were, subject to subsection (3). That is how I understand it. So there may be other places in the Bill, apart from Clause 52, as the noble Lord, Lord Elton, pointed out, where that would apply. I do not know whether the noble and learned Lord prefers to duck the point. I think that we should postpone the argument until a later date; indeed possibly until another stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [New principal councils to be local planning authorities in Wales]:

Lord Stanley of Alderley moved Amendment No. 30: Leave out Clause 18.

The noble Lord said: My Lords, I have a number of questions on which I have written to my noble and learned friend. I would like to have some clarification concerning this clause and other clauses which refer to planning. My first question follows my noble and learned friend's remarks at Second Reading (Official Report, 14/12/93; col. 1271). I ask: first, what confidence can the local people have that the planning system will deliver better decisions than it has in the past? In particular, will rural entrepreneurs still experience long and costly delays by dilatory planning authorities? Secondly, will the Government look again at DoE Circular 8/93 to make sure that those new and more local planning authorities do not behave unreasonably?

It is not unusual for an inspector to rule that a local planning authority has "behaved unreasonably" yet be unable, because of the circular, to award costs. So the local planning authority just laughs and continues to behave unreasonably. That is not quite in line with the Citizen's Charter. Can my noble and learned friend say whether ombudsmen's and inspectors' recommendations in future may—I say "may"—be made legally enforceable? They are in Northern Ireland.

My noble and learned friend may say that these points have nothing to do with this Bill. I beg to differ, not least because the new planning authorities will have lost the guidance, as far as overall structure plans are concerned, from the county councils. I shall be grateful if my noble and learned friend can tell me who, and more importantly, when, the future structure plans will be in place.

I suspect that these thoughts are somewhat similar to the points which were made by the noble Lord, Lord Williams, in a slightly different context but with the same philosophy on the last amendment. Perhaps my noble and learned friend can confirm that existing county council structure plans will remain in force until the new unitary authority plans are produced, or will the Secretary of State issue interim plans? I do not know. Perhaps he can also say what the position would be if an area committee adopted a planning policy contrary to a unitary development plan.

If there are to be joint arrangements between unitary authorities, are the Government going to issue guidelines as to how they should work? In particular, I am sure that guidance is needed on such things as road planning and certainly on waste disposal.

To put the matter in a sentence: believe that there could be a muddle. I accept that many of these points cannot be corrected in this Bill, but whenever any change in anything is made there is always a knock-on effect and it is always wise to be aware of that: commercial organisations are. I hope that my noble and learned friend will be able to say that the Government will be looking at these points and will take any necessary correcting action; otherwise the planning system, which will inevitably become more locally based under the Bill, will fall into, dare I say, even more disrepute than already exists, if that is possible. In short, I am quite worried. I beg to move.

8.45 p.m.

Lord Williams of Elvel

My Lords, the questions asked by the noble Lord, Lord Stanley of Alderley, are well put. The whole arrangement of how planning will work under the unitary councils, it seems to me, has yet to be determined. That will effect not just the business of structure plans and the development of Wales itself. It will affect all the voluntary organisations—I speak as president of the Campaign for the Protection of Rural Wales—which will have to deal with the planning mechanism as it is. Until we have some clear idea in the form of guidance from the Government as to how the whole thing is to operate, and a clear indication from the Welsh Office that the scheme is to work in the way it believes is efficient and it can be demonstrated that it is efficient, we are a bit in the dark.

I agree with the noble Lord, Lord Stanley, when he says that the planning regime in Wales does not have the highest reputation. It may even get worse unless the Welsh Office takes a grip of it. I hope that the noble and learned Lord will be able to answer convincingly the points which have been raised by the noble Lord, Lord Stanley, and that the Welsh Office will put these matters into practice pretty soon after the Bill becomes an Act.

Lord Elton

My Lords, it seems to me that the explanation which my noble friend Lord Stanley of Alderley is seeking may be supplied in my noble and learned friend's explanation of the effects of Clause 19, which would not work without Clause 18, which my noble friend's amendment seeks to remove. Therefore, it is proper to ask him whether the new body which is to be set up by the Secretary of State—by order, I might add, in the light of our last debate and under Clause 19(1)—will be the body which creates the structure plan. Will the structure plan created by it have the same effect as the structure plan under the existing arrangements in this country? I agree with my noble friend that without a structure plan planning will be all at sixes and sevens.

Lord Rodger of Earlsferry

My Lords, I may not be able to answer all the points which have been raised in sufficient detail. If that is so—and I shall reflect on what I am able to say—and as I reflect on the questions in Hansard, I shall write on these matters to my noble friend. But in broad terms it is of course the case that the new unitary structure does necessitate changes to the planning system in Wales. That is inevitable. Clause 18 provides for the new authorities to be the local planning authorities and the mineral planning authorities.

As noble Lords know, at the present time planning is currently the function of both the county and the district councils in Wales. The major effect and advantage of reorganisation will be to rationalise the administration and delivery of the service by vesting it, in effect, in a single authority for an area. I believe that that will mean that there is less confusion about responsibility for any particular matter. There will also be clear accountability.

I know from my own experience as regards equivalent legislation in Scotland that it is often difficult to deal with matters when there are two planning authorities involved. One finds oneself caught between the two. There is the awkward matter of evidence coming in or positions being taken by the county in Wales, and in Scotland the region, and so on. I believe that that of itself will be an advantage.

Clause 20 provides for a consequential change in the development plan system. That is a change from one based on local and structure plans to one based on unitary development plans, regulations and orders and directions as conferred by the Bill. That is the situation in broad terms.

In answering the questions more particularly which my noble friend Lord Stanley has put as regards what confidence local people can have that the planning system will be simplified, and so on, I have already indicated that the streamlining down to one authority should of itself help. I believe that that is a major advantage. Whether it will lead to all these authorities being as efficient as one would wish I cannot yet say because one has to see how they work. The trouble at the moment is that it is not necessarily the structure that is wrong but sometimes perhaps the particular body has not administered it as efficiently as it could. I cannot say at the moment that one can be absolutely confident that they will all be as punctilious in meeting the demands as my noble friend would like. However, I think that the system is an improvement.

My noble friend asked whether and to what extent one can expect the present planning system to be perpetuated. I think that it is correct to say that the system will not be fundamentally altered. The Town and Country Planning Act, as amended, will be amended to reflect the change in the nature of the authorities. Under the new system, each authority will prepare a single plan, a unitary development plan. It is expected that the new authorities will commence work on the unitary development plans as soon as practicable when the new system comes into force.

However, it is possible that the new authorities will find that they have inherited development plans which are in the course of preparation. They may take the view that those plans should be progressed through and, in due course, be adopted. They can apply to the Secretary of State for approval to do that. That is set out in Schedule 5. That would be an interim measure to ensure that an up-to-date development plan is in place before work commences on the unitary development plan.

To that extent, that measure is designed to deal with the kind of transitional problems which my noble friend has said that he fears. I think that any such change will have teething problems. We hope that such a measure will at least minimise those problems. The matter of the timescale for adopting the unitary development plans is something which the Welsh Office intends to deal with in guidance.

The question of approval of the unitary development plans will depend on local circumstances. A new authority may be able to take forward an existing plan, but that will not always be possible. It is for that reason that the department has not set any date for adoption of the unitary development plans throughout Wales. However, this is a matter which will, again, be dealt with by means of guidance from the Welsh Office.

Another question that was asked (of me in the letter) was whether clear guidance will be given in the unitary development plans to prospective developers. Unitary development plans will provide clear guidance. The decision-making of the new authorities will be based on the development plans. Although any individual planning application will continue to be considered on its merits—that must always be so—noble Lords will recall that under the Planning and Compensation Act 1991, local planning authorities are required to determine any application in accordance with the provisions of the development plan unless material considerations indicate otherwise.

In broad terms, the area committee would have to apply the terms of the unitary development plan. One of the matters that I should like to consider further and about which I shall write to my noble friend is the question of exactly what the remedy would be if the area committee decided not to do that.

I hope that I have, at least in broad terms, answered the questions that have been put to me. As I have said, I shall read Hansard and if there are any other matters on which I can help my noble friend or any other noble Lord, I shall seek to do so.

Lord Williams of Elvel

My Lords, before the noble and learned Lord sits down—

Lord Elton

My Lords, before my noble and learned friend sits down for the second but not the ultimate time, will he take on board the fact that it seems to me that the whole question of whether this will work hangs on the operation of Clause 19, which enables the Secretary of State to determine the size of the planning board? If boards are too small, the Secretary of State can make joint boards by order. That is crucial to planning. If the unitary authorities—the principal authorities—are very small, it will be almost impossible to have an industrial development plan, a housing plan or any of the other sorts of plans that should be established by an authority that covers much more of an area than one of the little bodies that we are creating. The Secretary of State can either leave a mosaic of small bodies or have a patchwork quilt, as it were, of larger authorities by using Clause 19. It would be extremely helpful to know the extent to which he intends using that power. If my noble and learned friend could put that information in a letter to me, I should be most grateful.

Lord Williams of Elvel

My Lords, since the noble and learned Lord has not yet sat down, perhaps I can ask another question of information. Is there any mechanism in the Bill as drafted for the Welsh Office to approve these unitary development plans? I can imagine that in relatively small authorities the development plan of one authority might adopt a completely different philosophy from the development plan of another authority. I think that I said in Committee that Radnor and Brecon have completely different methods of adjudicating on planning decisions. Indeed, the two counties look very different. That has been happening over the past 15 years to my knowledge. Does the Welsh Office have any mechanism whereby the Secretary of State can ensure that the unitary development plans follow a coherent pattern?

Lord Stanley of Alderley

My Lords, not for the first time this evening—I am sure this will happen in the future—I am grateful to my noble and learned friend for the great care and trouble that he took in replying to my question—

Lord Rodger of Earlsferry

My Lords, perhaps I may intervene to say that I should like to reply in writing to the noble Lord, Lord Williams, on the matter that he raised. I shall reply equally to my noble friend Lord Elton.

Lord Stanley of Alderley

My Lords, I am sorry to have been in such a hurry.

Not for the first time, I feel that I have pushed the ball into court and that your Lordships are playing it. I am grateful to noble Lords for their help in expressing similar concerns to mine over this matter. It needs quite a lot of careful thought, which is what your Lordships have given it. I strongly suspect that the Government will hear more about this problem, particularly when we get to the English Bill. I hope—I beg—that the Government will consider carefully (my noble and learned friend has obviously done this) the points that I and other noble Lords have raised so that we get this right—or as near right as possible. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Clause 19 [Joint and special planning boards in Wales]:

Lord Morris of Castle Morris moved Amendment No. 31: Page 14, line 42, leave out ("may") and insert ("shall").

The noble Lord said: My Lords, and now for something completely different. We shall, of course, be returning to questions of planning—in my case, in about 30 amendments' time. Meanwhile, we are all looking forward with scarcely concealed impatience to the Private Member's Bill of the noble Lord, Lord Norrie, on the national parks. The noble Lord, my noble friend Lady White and I have the honour to be Vice-Presidents of the Council for National Parks and have a deep interest in that subject. I should stress that we have no pecuniary interest in that topic so far as I am aware.

The purpose of the amendment is to seek an assurance from the Minister that if the Bill introduced by the noble Lord, Lord Norrie, fails—and heaven forfend that it should—the Secretary of State will definitely create boards where there are currently committees of county councils to administer the national parks in Wales. At present all three national parks in Wales are run as committees of county councils, which will therefore cease to exist.

Fortunately, there is an alternative legal framework for administering a national park. It is known as a "board". A board is a freestanding thing within the local government framework. Two-thirds of the members are from local authorities in both kinds of operation. It should be noted that in 1991 the Minister announced that the Government believed that all 10 national parks in both Wales and England should be constituted along the lines of boards and not committees. The term used was "independent authorities". That has come to be the term of art for this particular board.

That became a manifesto commitment. We on this side of the House never cease to be impressed by the way in which Her Majesty's Government honour any commitment which has appeared in the manifesto, no matter what may come. We hope that they will honour this one. Clause 19 makes it much easier to change existing park committees in Wales into boards and under current legislation that would be difficult. Therefore, we have no difficulty whatever in seeing some real merit and relief in Clause 19.

On Second Reading it was announced that the noble Lord, Lord Norrie, hopes soon to introduce his Private Member's Bill with government support. That would offer a superior legislative framework for setting up national park authorities along the same lines as boards. The Bill would be superior because it would be drafted from scratch rather than amending and patching existing legislation. There would be the opportunity and scope to sort out anomalies and to incorporate best practice from existing areas which have boards. It would also apply equally to England and Wales.

Also on Second Reading the noble and learned Lord helpfully said that if the noble Lord, Lord Norrie, is successful with his Bill it would be the preferred option for the Welsh national parks. Therefore, from our point of view, Clause 19 can be seen as nothing much more than an insurance policy in case the Bill of the noble Lord, Lord Norrie, should fail.

The danger that the Council for National Parks wishes to guard against is a scenario which might be as follows: the noble Lord's Bill fails for some reason unconnected with any of us, and for some reason the Secretary of State decides not to set up board parks in Wales using his powers to make an order. At present, Clause 19 is perhaps a weak enabling clause. We would prefer the Bill to say "shall" rather than "may" because "shall" is a firmer, mandatory word, briskly reminding the Secretary of State of his duties. It is a word which would both permit and oblige the Secretary of State to do as King Henry V—that great and good Welsh king of England—advised his English army; to stiffen his sinews, summon up his blood and set up boards for the national parks. I beg to move.

Baroness White

My Lords, I cannot quote Shakespeare, but I shall say that as a fellow vice-president of the Council of National Parks, I am entirely in favour of the proposed amendment. I hope that the Government will have the sense to accept it herewith.

Lord Simon of Glaisdale

My Lords, the favourite parliamentary ploy is to play about with the words "shall" and "may". On this occasion, the word "may" can be preferred on two grounds. First, that the Secretary of State wishes to have an unbridled discretion. Secondly, that he envisages circumstances in which he may not want to institute a special board. I take it that we can discount the first and that the Secretary of State does not want an unbridled discretion but is content if necessary to be guided by Parliament. Therefore, when the noble Viscount, Lord St. Davids, replies—he seems to be the one on the point of reply —your Lordships will want to know what are the circumstances in which the Secretary of State may not wish to act as directed in the subsection.

Viscount St. Davids

My Lords, I can assure your Lordships that the Government remain committed to their manifesto pledge of establishing independent national park authorities. The setting up of such authorities would dispense with the need for planning boards. Your Lordships are aware of the Bill which my noble friend Lord Norrie proposes to introduce. It would have the effect of creating independent national park authorities. Were my noble friend's Bill to receive the approval of Parliament, the Government would not need to bring into effect or use the provisions of Clause 19 to create planning boards for national parks in Wales. In the event of my noble friend's Bill not receiving parliamentary approval, however, the Government would certainly move to establish such boards.

The Government thus wish to retain the wording of Clause 19 as drafted. That will ensure that there is no compulsion to establish special planning boards when they may no longer be required on account of changes brought about by legislation being brought forward separately and subject to different parliamentary timescales. It will also retain consistency with existing permissive powers to establish joint planning boards which remain unaffected by the requirements of local government reorganisation.

Lord Morris of Castle Morris

My Lords, I am grateful to the noble Viscount for that reply; at least I think I am. I find it quite astonishing, as I found the whole of this splendid debate on what I thought would be a simple and pleasant little amendment. I normally find that anything said by the noble and learned Lord, Lord Simon of Glaisdale, commands my instantaneous agreement and support. I found that to be so when he said that he was concerned about unbridled discretion being given to a Secretary of State. I found those to be cheerful and fortifying words. I am always suspicious of giving unbridled discretion to any Secretary of State —and I almost go so far as to say, of whatever party.

The noble and learned Lord asked what circumstances there may be in which a Secretary of State may not wish to act in the way that has been described. I am bound to say that the noble Viscount brought forward no such circumstances and I am relieved and pleased that I did not hear any such thing.

If I understood him correctly, the noble Viscount said that there is no need for any change here because, in the unlikely event—that sounds as though this aeroplane is coming down on water, does it not?—of the Bill sponsored by the noble Lord, Lord Norrie, not succeeding, then the Government are minded, nay determined, to act as I want them to do. They do not wish to be told that that is what they have to do.

Forgive an old Welsh cynic but I find that I am always suspicious when somebody says, "There is no need for you to tell me to do that, because I fully intend to do it". Circumstances change; times change; things go differently. It is always nicer and more pleasant to have something set down in law and on the face of the Bill rather than having to rely on a statement made, even in your Lordships' House, and even by someone like the noble Viscount, with whom I would trust my life. Who was it who said: "God is love but get it in writing"?

That is still my view about the Bill. Perhaps I may ask the noble Viscount to explain why he is so robustly ready to do what I want him to do but does not want the words written on the face of the Bill.

Viscount St. Davids

My Lords, the matter hinges on the fact that we should not need the powers of compulsion if the Bill sponsored by my noble friend Lord Norrie passes through Parliament. However, we have, as a commitment, undertaken that, if the Bill fails, we shall bring forward legislation to set up the necessary boards. We also wish to keep consistent existing law. Therefore, we prefer that Clause 19 should remain as it is.

Lord Morris of Castle Morris

My Lords, on the understanding, which I had not taken on board—and that was probably my fault—that, in the event of the Bill of the noble Lord, Lord Norrie, failing, legislation will be brought forward and that there is a commitment to do that, I am delighted and pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (The Viscount of Oxfuird)

My Lords, Amendment No. 32 should read: Insert the following new clause", and not the words as printed.

Lord Rodger of Earlsferry moved Amendment No. 32: After Clause 20, insert the following new clause: Local education authorities and minor authorities in Wales

1. (".—(1) In section 114 of the Education Act 1944 (interpretation), in the definition of "local education authority" in subsection (1), after "the county," insert "in relation to a county borough, the council of the county borough,".
2. (2) In section 192 of the 1972 Act (education), in subsection (1), after "non-metropolitan county" insert "in England" and at the end add "but, for each principal area in Wales, the local education authority shall be the council of that principal area".
3. (3) In section 114(1) of the Act of 1944, in the definition of "minor authority", omit, in paragraph (b), "is a community having no community council or" and, in paragraph (c) (iii), "which is a community having no community council or".").

The noble and learned Lord said: My Lords, Amendment No. 32 introduces a new clause. The Government are conscious of anxieties that have been expressed about the absence of any reference to education in the Bill as it was originally drafted. That gave rise to certain suspicions. I hope that those suspicions are allayed by this amendment, which makes good that deficiency. On that basis I hope that the House will welcome the amendment, which effects the transfer of the functions relating to education to the new authorities by making textual amendments to the relevant legislation.

All the amendments are solely for the purpose of carrying forward existing county functions into the new councils. As I believe your Lordships will appreciate, in one sense it is possible to achieve that merely by using the provisions in Clause 17. But, as with certain other functions, it has been thought better—and by "better", I mean better for those who must operate the legislation when it becomes an Act—for these amendments to be plain on the face of the legislation so that people can use them. I beg to move.

Lord Prys-Davies

My Lords, we welcome the new clause. I have sought technical guidance from the officers of the county councils in Wales on its contents, and am advised that the clause appears to be in order.

On Question, amendment agreed to.

9.15 p.m.

Lord Elton moved Amendment No. 33: After Clause 20, insert the following new clause:

("Trading standards

.—(1) Before 1st April 1996 the Secretary of State shall by order either—

1. (a) make a scheme to establish a single trading standards authority for Wales in accordance with the following subsection; or
2. (b) make schemes to establish a trading standards authority in accordance with the following subsection for the local government comprised in each of the combined areas set out in Schedule (Combined areas for trading standards administration) to this Act.

(2) A trading standards authority shall—

1. (a) have all the duties, functions and powers of a local weights and measures authority under the Weights and Measures Act 1985 or under any other legislative provision;
2. (b) enforce the provisions of sections 14 and 15 of the Food Safety Act 1990;
3. (c) discharge, with its agreement, any function of a new principal council under any legislative provision;
4. (d) be empowered to make, or assist in the making of, arrangements to provide advice to or for the benefit of suppliers and consumers of goods and services; and
5. (e) have a membership drawn exclusively from representatives nominated for this purpose by each new principal council.").

The noble Lord said: My Lords, in moving the above amendment I shall, for the convenience of the House, speak also to Amendments Nos. 36 and 42. In Committee, there was universal agreement that effective trading standards control is essential not only for the well-being but also for the safety of the public in Wales, as is the case everywhere else. There was almost universal agreement that each of the successor bodies —that is, the principal authorities—created under the Bill would on its own be too small to deliver effective trading standards control. Therefore, not unexpectedly, the Bill provides the power in Clauses 29 and 30 for principal authorities to set up combined trading standards authorities.

There is also universal agreement that principal authorities can operate together. In addition, the Government believe that they will do so and that they will do so permanently. In Committee, I reminded noble Lords—as, indeed, I now remind my noble friend the Minister again with some authority—that that assumption is ill founded. I had exactly the same belief in 1985 when I was a Minister of State at the Department of the Environment and took the Local Government Bill of that year through the House. I was in exactly the same position as my noble friend today and I took exactly the same stance, though I was not justified in so doing.

In that Bill, six voluntary joint authorities were set up to begin with, which is what I expected. I should add that, of those, the smallest had a population of 1.3 million. However, only one of those bodies now survives, while the rest fragmented into 32 constituent parts. There is general agreement that those 32 constituent parts are less effective and more expensive as the administrators of trading standards control because they are so much smaller. Indeed, the smallest post-1985 group was 1.3 million, but the biggest Welsh post-1994 group will only be 275,000—that is to say, one-quarter of that size—if the constituent parts fragment as happened before.

It seems that everyone, except some government departments, is alert to that prospect. Indeed, I have a very large mailbag to prove it. At this late hour I shall not drone on through it all. Nevertheless, I think that it is worth quoting selectively from some of the letters. I shall start with the Director-General of the CBI, who says: There is growing concern among CBI members about the fragmentation of regulatory service which may follow local government reorganisation … The Secretary of State for Wales is aware that business in Wales is concerned about the fragmentation of regulatory services … We"—

that is, the CBI have had approaches from several multiple retailers about the effect on trading standards enforcement in particular. If there is no stiffening of the provisions of the Bill now before the Lords, we hope that the Secretary of State will be ready to look again at some of the arguments set out in debate in the Lords in particular".

The British Retail Consortium, which represents 90 per cent. of British retailers, initially wrote to the Secretary of State in June 1993 expressing its concern that the considerable reduction in size of operational units would make it impossible to provide the level of expertise necessary to provide a full trading service. The consortium then wrote again to the Secretary of State in December saying that it remained worried about the Bill now before Parliament.

Many retail groups have written independently stating their anxieties. Indeed, Mercury Communications said in writing to the Secretary of State that, initiatives such as this could discourage investment in the Principality".

On 24th January 1994 Mercury wrote again saying: We have a continuing concern centred on the increased burden to business in general, and small businesses in particular, of the current proposals. In our view, this will be an inevitable consequence of increasing the number of operational units with which Mercury, along with other businesses, will have to deal. We would urge that further consideration be given to the points raised when the Bill is debated again".

The Retail Credit Group also wrote to the Secretary of State last month to say that its members are concerned that, trading standards officers should be based in sizeable organisations … and combined authorities would be very much better than those based on small district authorities".

The noble Lord, Lord Inchyra, who is president of the British Bankers Association, has also written in similar terms. The National Animal Health and Welfare Panel has also written. The National Federation of Consumer Groups says: We are deeply concerned about the fragmentation of the trading standards service. It will substantially weaken [the system]".

The Welsh Consumer Council has written a similar letter. I have reams more and those are only an extract of all the correspondence that has been received.

There is consensus that the small units will not be affected. To that point, my noble and learned friend will no doubt reply, as he did before, that there is a reserve power in Clause 30 which the Secretary of State can use to direct local authorities to form joint working groups.

Even with the amendment which my noble and learned friend has kindly made to the timetable for triggering the intervention of the Secretary of State, the prospect is that intervention would be retrospective—that is, after the damage has been done.

The damage can be serious. As I stated at Committee stage, it could be the failure to contain bovine spongiform encephalopathy (mad cow disease); it could be the failure to ensure that motorists got a full litre of petrol when they paid for it; it could be that your Lordships would not know what they were eating from reading the label on food provided in Wales. That situation is very relevant today in view of the comments on the television this evening: it could be a failure to control the distribution of pornographic and illegal video material.

My noble and learned friend may also state that we want to substitute a duty for a power, which would be to diminish democracy. I refer my noble and learned friend to the readiness of his Secretary of State, as expressed in Clause 19 subsection (1), page 14, line 29 to 36, to order local authorities to do exactly that under the planning regulations that we discussed a moment ago. Planning is surely a matter for democratic control. Therefore, it does not lie with my noble and learned friend to say that to do this would be anti-democratic. All that I and my noble friends ask, and what the Liberal Party were asking at Committee and will no doubt ask again when we return—as, I hope, will others—together with the CBI and virtually the whole of the commercial sector who have written to us is that the power should be turned into a duty.

The amendments propose two different methods of achieving that aim. Amendment No. 33, with Amendment No. 36, sets out a scheme by which the Secretary of State shall require local authorities to co-operate either in a single scheme or in a number of schemes of his determination. Amendment No. 42 proposes the simple solution that he should hand the duty of regulation to, or make it coterminous with, that of the fire authorities.

I apologise for taking 11 minutes of your Lordships' time so late at night. On the other hand, it is a big subject and to have given less would not have done it justice. I offer my noble and learned friend two ways forward for Third Reading. I hope that he will choose one of them and I shall listen very carefully to his answer to see which.

Baroness Faithfull

My Lords, at this late hour I shall not elaborate, expand or go over the points that have been made by my noble friend Lord Elton, because he has put them so well. I rise to state that I support the amendment.

Baroness Hooper

My Lords, I have not previously played an active part in the Bill but I am happy to support my noble friend Lord Elton because I believe that his amendment impinges upon another Bill which is before your Lordships' House and with which I am concerned—that is, the Trade Marks Bill. Its effectiveness particularly in relation to clamping down on counterfeiting, for example, will very much depend upon how it is policed. If enforcement effort is dissipated because trading standards expertise is dispersed, then we shall lose some of the proposed benefits of the Bill.

I hope that the Minister will feel able to take on board the very persuasive arguments that have been advanced by my noble friend Lord Elton.

Lord Harlech

My Lords, I should like to support my noble friend Lord Elton again in this debate. I do not believe that the fracturing of trading standards departments would be of assistance. It would not be seen as an advantage by the citizen, and after all the citizen is the taxpayer. Ultimately we, as the Government, are responsible for giving our best endeavours to ensure that trading standards officers' work is done properly.

It was interesting to hear the very persuasive argument that creating more and more unassociated departments is not in the interests of the protection of the citizen, which is the purpose of the amendment. It is important to understand that the work of trading standards officers is cohesive and interdepartmental; it should not be fractured. My noble friend Lord Elton has already said that there is provision for the Secretary of State to overrule. However, as he said, the damage has already been done.

I draw your Lordships' attention to an example of where the citizen judges whether a statute is good or bad. In 1984, during the miners' strike, the standards relating to the heat treatment of material from slaughterhouses were lowered, not by statute but simply by a sweep of the pen. Now we see serious cases of bovine spongiform encephalopathy. Indeed, it is now considered there is a possible association with Creutzfeldt Jakob disease, which has an 18-year incubation period.

The cohesion of trading standards officers is vital. They provide a service. For example, in relation to the Ministry for Agriculture, an expert in Wales wrote an extremely interesting book on the way in which diseases in sheep were transmitted. It mentioned rainwater and cloud formations, and the cycle of snails, with which some of your Lordships may be familiar. That gentleman had experience covering a wide range of subjects in which he interacted with all his colleagues.

I do not support every trading standards officer who may drive into your yard. Their efforts may not always be particularly useful to the endeavour of the citizen. They may wish to be more powerful than they are. Nevertheless, there is greater accountability if they remain a cohesive professional body. They could become a quango which simply enforces EC law by, for example, shutting down small slaughterhouses and putting people out of work, or stopping a man in a pub from cutting sandwiches unless he has spent a fortune on his kitchen, or regulating natural water supplies so that people are not allowed to drink from them although they have probably been drinking from them for 400 years.

The body of expertise is built up through cohesion. Breaking up the departments is not correct, in my view. That is why I wish to support my noble friend's amendment. There is no doubt in my mind that we are all mortal; but, make no mistake, the roar from people who are disturbed by what becomes statute but is bad law will be heard.

9.30 p.m.

Lord Kenyon

My Lords, unlike my noble friends, I fail to understand why trading standards officers should be singled out for special attention in the Bill. Trading standards offices are one of the regulatory authorities. The trading standards officer is similar in many respects to the environmental health officer. Environmental health officers are employed by each of the 37 district councils at present. I believe that there would be considerable empathy between those two bodies if they were to be incorporated into the new unitary authorities. As my noble friend and kinsman Lord Harlech pointed out, the problem of BSE and Creutzfeldt Jakob disease is dealt with by environmental health officers, probably as well as the trading standards officers. I do not believe that there is an argument for making a special case.

Lord Williams of Elvel

My Lords, I am grateful to the noble Lord, Lord Elton, for bringing forward the amendments. At Committee stage we had a discussion about the principle of putting trading standards under one, two or three authorities. I differed from the noble Lord on certain points. He has come back with a formula which is an advance on the formula that he put forward in Committee.

The trading standards functions which would be transferred if the provisions of Amendment No. 33 were in the Bill are only part of the trading standards functions exercised by trading standards officers. With the new principal councils would remain duties under the Petroleum Acts, concerning the licensing of petroleum stores—for instance, garages—explosive Acts controlling the storage of explosives and the sale of fireworks, the road traffic Acts, the Children and Young Persons Act, the Agriculture Act 1970, the Poisons Act 1972, the Control of Pollution Act 1974, the Trading Representations (Disabled Persons) Acts 1958 and 1972, the Trading Stamps Act 1964, the Unsolicited Goods and Services Acts 1971 and 1975 and the Medicines Act 1968. I am sure that the noble and learned Lord the Lord Advocate has the same list.

It is not a question of transferring all functions from the new principal councils. Indeed, those important functions will remain with the principal councils.

We are therefore discussing a split in the trading standards function between those which are carried out under the Weights and Measures Act 1985 and Sections 14 and 15 of the Food Safety Act 1990 and functions under the other legislation that I have just recited. That gives rise to certain problems. Be that as it may, if such problems can be resolved, it is perfectly clear to me that the new principal councils would have a very powerful trading standards function in their own right even if Amendment No. 33 was accepted.

Amendments Nos. 36 and 42 are designed, as I understand it, to avoid the problem of the difficulty of democratic accountability that was raised in Committee. If I were to talk at length about Amendment No. 36, I would like to see it not in the form of a schedule but as a voluntary combination which principal councils might wish to make, as opposed to it being set in stone in a schedule. It would be a fairly delicate matter.

On Amendment No. 42 I confess I have a problem. I realise that it is an alternative to Amendment No. 36, as the noble Lord, Lord Elton, explained. I find it an odd conception that a fire authority should suddenly become a weights and measures authority. I wonder whether subsection (b) of Amendment No. 42 which states, have all the duties, functions and powers", extends the powers. At the end of the subsection there is the phrase, or under any other legislative provision". That seems to me to depart from the main thrust of what the noble Lord, Lord Elton, was saying that many trading standards functions would remain with the principal councils and some would go to the bodies which he recommended. That would depart from the main thrust and allow the bodies which the noble Lord recommends to take over all the functions of the principal councils. I may have misunderstood the amendment and perhaps he would be kind enough to put me right if I have.

Thus, although the amendment is an improvement on what the noble Lord put forward in Committee, I believe that it leaves a major role for the new principal councils. When the noble Lord comes to it perhaps he would explain how the two roles can be reconciled in a proper and efficient manner.

Lord Rodger of Earlsferry

My Lords, my noble friend Lord Elton has argued his case again with his usual force, I know at some personal inconvenience. The Government understand the points which he made on this occasion and in Committee. He and the Government share the objective that a proper service of a proper quality should be delivered at least as effectively under the new structure as it has been under the existing structure. Where we part company is on the means of attaining those ends.

Until I heard the extremely enlightening speech of the noble Lord, Lord Williams, on the precise legislative provisions involved, I had understood at least the intention of my noble friend's amendment to be that the new trading standards authorities, as he envisages them, should take over the role which would otherwise be transferred to the new unitary authorities. I had taken it that his intention was that all the roles should go to the new bodies. I have treated the amendment on that basis. It may be that that was wrong, but that was the intention, as I understood it, from conversations with him and others.

We do not believe that such an approach is the correct way forward and I adopt what was said by my noble friend Lord Kenyon. The Government do not believe that there is any significant difference between the trading standards function and the kind of function which is to be transferred to the new unitary authorities in an area such as environmental health. It seems to the Government that the area of environmental health has many aspects which are similar to that of trading standards and that the inspectors involved in the two areas have performed functions which are not entirely dissimilar. They have skills which are not entirely dissimilar, and just as environmental health functions can be properly addressed by the new authorities, so we believe that the trading standards function can also be transferred and dealt with satisfactorily by the new authorities. I have made it clear on a number of occasions that that is not to say that we expect all the functions to be carried out by each of the authorities. I know that this has not met with the approval of my noble friend. But we envisage that the local authorities would be able and would wish to enter into appropriate arrangements with other authorities for the delivery of services, especially where specialist services which they themselves did not have had to be delivered.

We believe that the local authorities, democratically elected and taking a responsible view of what is required for their areas, would indeed make appropriate arrangements for trading standards services of the correct standard for their area. We have no reason to think that they would fail in that matter any more than we would expect them to fail in other areas.

Amendment No. 48 has a bearing on this matter, as my noble friend said. Even at the stage of the draft services delivery plan, if it appears that adequate services will not be available, the reserve powers which are provided for in the Act are available to the Secretary of State. I have no doubt that, especially in the light of all the representations made to him about how the matter will not work, he will wish to examine carefully the arrangements that are proposed or then put in place to see how they are operating, will operate or have operated. If necessary he would use the reserve powers to ensure that standards of an appropriate level were maintained by the service.

For those reasons we believe that the scheme as laid down in the Act is appropriate. We do not believe that any of the schemes put forward by my noble friend Lord Elton would be appropriate or an improvement. We feel that this, like other services, should be delivered locally and subject to the availability of all the arrangements for joint delivery of the services. For those reasons I cannot accept my noble friend's amendment. I believe that the Government's approach to this matter is right.

Lord Elton

My Lords, I am grateful to my noble friends who have supported me at this late hour. I am also grateful to my noble friend Lord Kenyon for giving me the opportunity to remind your Lordships that the burden carried by trading standards officers is one of enforcing 70 statutes and over 500 statutory instruments. When two or three people are trying to run an entire trading standards administration in an authority, the number of different forms of expertise and scientific skills that they are expected to have is simply insupportable. It is universally agreed that they cannot operate separately. My noble and learned friend and I have no difference on that.

Indeed, I am very puzzled because my noble and learned friend finds it perfectly all right for those people to co-operate in large groups if they want to do so, but he finds something undemocratic and unacceptable about it if they do not. It seems to me that safety of life which may be involved in these cases comes above the theory of democracy in this matter.

The Secretary of State already envisages putting efficient planning above the requirements of the theory of democracy in Clause 19. I do not understand why he cannot do that here.

My noble and learned friend pointed to Amendment No. 48. I have already thanked him for it in advance. I thank him again now and will thank him for a third time when we come to deal with it. One has to be grateful for crumbs of comfort in this place. He pointed out that because of that provision the Secretary of State will have a reasonably small amount of time—albeit a small amount of time and not the nanosecond that there was to have been in Committee —in which to avert the danger of local authorities not coming together voluntarily to start with. That is not the danger.

I have been here before. I had the same sanguine hopes as my noble and learned friend and his right honourable friend and mine, the Secretary of State. I expected everybody to coalesce and they coalesced. But I expected them to go on working together and they did not. So I rode my bicycle down a smooth road and fell in a pothole. All I am trying to do is to help my noble and learned friend gracefully to avoid the pothole and show himself sensitive to the reasoned arguments that I put forward.

The noble Lord, Lord Williams of Elvel, courteously changed his position a little towards me in recognition of the fact that I had changed my position a little on the amendments. He raised a number of cogent questions. Nonetheless, I would be perfectly content if a means could be found under Amendments Nos. 33 and 36, as redrafted for a later stage, for the groups that are eventually imposed compulsorily to be arrived at voluntarily first if possible. Indeed, I should like the machinery in the Bill to work and then for the Secretary of State to say: "So be it, you cannot go back". That would satisfy me. The parliamentary draftsman may be able to do it in a few lines; I cannot. I am not a parliamentary draftsman. I have none at my command; my noble and learned friend does. I hope he will use those services.

Amendment No. 42 brings up a point which the noble Lord, Lord Williams—I almost called him "my noble friend", so unaccustomed am I to his warm support—drew to your Lordships' attention. It was a list of the powers which should not be included under the provisions, if they were adopted, of Amendment No. 42. I confirm that as far as I know the list was complete. That illustrates that trading standards legislation—loosely so termed—is not a seamless whole and it is possible to transfer bits in and out of an administration. The amendment serves only as a peg on which to illustrate how that can be done. It would be for the Secretary of State, or for your Lordships at a later stage, to decide how much should be ceded to the wishes of district councils to increase or retain a number of powers and how much should be retained for the effective working of the protection of the consuming public. I would not wish to go into the details of that tonight, but it is an area which may have to be explored.

I believe that there is a simple route forward—not quite on the lines of my first amendment and the one consequential upon it, but on the lines that I mentioned of the Secretary of State allowing the voluntary system to form itself; only intervening if it does not completely form itself, and then when that process is complete saying, "This is how it is going to be unless you persuade me otherwise in the future". If he does not do that it will fall down and the results will be nastier in Wales than they were in Greater Manchester or in the other metropolitan county areas, because the units will be infinitely smaller and all this turns on size. Let us not forget in this teeming City of Westminster, this vast metropolis, that we are dealing with extremely small communities which have just the same spectrum of risk and complexity of legislation to deal with as we have here with the concentrated population and the larger number of officers able to enforce it.

My noble and learned friend did not accept my invitation to choose one road forward or another. I shall have to reflect between now and Third Reading which of the three roads, as they now are, forward I must ask your Lordships to take. It is an issue of sufficient importance for us not to leave it hanging in the air when the Bill leaves this House for another place. I shall doubtless be in contact with my noble and learned friend between now and Third Reading and I hope that he will consider yet further my arguments and anything I have succeeded in adding to them tonight. I shall stop doing so now as I see the clouds of sleep forming around your Lordships' heads. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [Minor and Consequential Amendments:Planning]:

Viscount St. Davids moved Amendment No. 34: Page 73, line 22, after ("(1)") insert ("In section 57 of the National Parks and Access to the Countryside Act 1949 (penalty for displaying on footpaths notices deterring public use), in subsection (3), after "district" insert "or, where they are not the highway authority, the council of the Welsh county or county borough". (1A)").

The noble Viscount said: My Lords, in moving this amendment I shall speak also to Amendment No. 35. This is a technical amendment. Part II of Schedule 6 to the Bill provides for minor and consequential amendments to enactments other than the Local Government Act 1972 as a result of reorganisation.

Amendment No. 34 amends Section 57 of the National Parks and Access to the Countryside Act 1949 to provide for the power of prosecution which is presently vested in the district council to be vested in the new council in Wales where it is not the highway authority. Amendment No. 35 is purely consequential on Amendment No. 34. I beg to move.

Lord Morris of Castle Morris

My Lords, the noble Viscount has indeed heard the plea of a number of organisations concerned with the countryside which have written to me about this amendment. He has brought forward an amendment which meets their needs and improves the Bill. On behalf of all hikers, ramblers, wanderers in the wilderness, tramps and friends of the national parks, I thank him for it.

On Question, amendment agreed to.

Viscount St. Davids moved Amendment No. 35: Page 73, line 22, leave out ("the National Parks and Access to the Countryside Act 1949") and insert ("that Act").

On Question, amendment agreed to.

[Amendment No. 36 not moved.]

Clause 21 [Transfer of other specific functions]:

Lord Rodger of Earlsferry moved Amendment No. 37: Page 17, line 9, at end insert: ("( ) Schedule 9A makes provision for the transfer to the new principal councils of functions in relation to social services.").

The noble and learned Lord said: My Lords, this amendment introduces a new schedule which is set out in Amendment No. 40. The schedule contains consequential amendments to legislation relating to social services. The amendments are solely for the purpose of carrying forward existing county functions to the new councils. These provisions are similar to the provisions in relation to education. It is a matter which it would have been possible to leave resting on the basis of Clause 17, but again it has been thought better for the users of the legislation that the matter should be spelt out in this way. I beg to move.

Lord Prys-Davies

My Lords, on behalf of these Benches I welcome Schedule 9A. Reading through its provisions gives one an idea of the extensive range of the social services functions and how important they are. We shall return to this issue at a later stage.

Again, I have sought advice from the officers of the local authority associations in Wales. They may later on pick up one or two items which have been left out. For the time being it appears to be in order and I am therefore pleased to support the amendment.

On Question, amendment agreed to.

Schedule 7 [Highways, Road Traffic and Transport]:

Lord Rodger of Earlsferry moved Amendment No. 38: Page 78, line 40, after ("section,") insert ("for "district council" substitute "contracting council" and").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 39. Schedule 7 to the Bill makes provision for the transfer to the new principal councils of functions in relation to highways, road traffic and transport. Amendment No. 38 corrects the amendment to subsection (6A) of the Highways Act 1980. That subsection empowers the Secretary of State's agent authority to sub-contract to another Welsh council in respect of a trunk road outside the sub-contractor's area. It corrects it by substituting a correct reference to a contracting council. Amendment No. 39 corrects the amendment to Section 220 of the Act in consequence of the new subsection (2A) of Section 220 which has been inserted by paragraph 21 of the schedule. Both of these amendments are purely technical drafting corrections. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 39: Page 81, line 11, leave out ("for") and insert ("after first "subsection (2)" insert "or (2A)", after "district council" insert " or Welsh council" and for second").

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No.40: After Schedule 9, insert the following new schedule: ("SCHEDULE 9A SOCIAL SERVICES The Children and Young Persons Act 1933 (c. 12) 1.—(1) Section 96 of the Children and Young Persons Act 1933 (provisions as to local authorities) is amended as follows. (2) In subsection (1A), at the end add "but, in relation to Wales, shall be the councils of counties and county boroughs". (3) After subsection (4) insert— (4A) Subsection (4) above does not apply in relation to the council of any Welsh county or county borough. The National Assistance Act 1948 (c. 29) 2.—(1) In section 47 of the National Assistance Act 1948 (removal to suitable premises of persons in need of care and attention), in subsection (12), after "City of London" insert ", in Wales the councils of counties and county boroughs". (2) In section 64(1) of that Act (interpretation), in the definition of "local authority" at the end add "but in relation to Wales means the council of a county or county borough". The Disabled Persons (Employment) Act 1958 (c. 33) 3. In section 3 of the Disabled Persons (Employment) Act 1958 (provision of sheltered employment by local authorities), in subsection (5), omit "or Wales" and at the end add "and in relation to Wales, the council of a county or county borough". The Children and Young Persons Act 1963 (c. 37) 4.—(I) In section 56 of the Children and Young Persons Act 1963 (prosecution of certain offences), after subsection (1) insert (I A) Subsection (1) above shall have effect in relation to Wales as if the reference to a county were a reference to a Welsh county or county borough. (2) In section 63 of that Act (interpretation), in subsection (1A), after "metropolitan counties)," insert "of county boroughs,". The Health Services and Public Health Act 1968 (c. 46) 5.—(1) In section 45 of the Health Services and Public Health Act 1968 (promotion, by local authorities, of the welfare of old people), in subsection (11), after "county, or of a" insert "county borough,". (2) In section 64 of that Act (financial assistance to certain voluntary organisations), in subsection (3) (b), after "non-metropolitan county," insert "county borough,". (3) In section 65 of that Act (which makes similar provision relating to financial assistance by local authorities), in subsection (3) (a), after "county, or of a" insert "county borough,". The Children and Young Persons Act 1969 (c. 54) (6) In section 70(1) of the Children and Young Persons Act 1969 (interpretation), in the definition of "local authority", after "county or of a" insert "county borough,". The Local Authority Social Services Act 1970 (c. 42) (7) In section 1 of the Local Authority Social Services Act 1970 (local authorities for the purposes of the Act), at the end add "but, in relation to Wales, shall be the councils of counties and county boroughs". The Chronically Sick and Disabled Persons Act 1970 (c.44) (8) In section 21 of the Chronically Sick and Disabled Persons Act 1970 (badges for display on motor vehicles used by disabled persons), in subsection (8), omit "or Wales" and after "London borough" insert ", the council of a Welsh county or county borough". The Adoption Act 1976 (c. 36) (9) In section 72(1) of the Adoption Act 1976 (interpretation), in the definition of "local authority", after "City of London" insert "but, in relation to Wales, means the council of a county or county borough". The Supplementary Benefits Act 1976 (c. 71) (10) In Schedule 5 to the Supplementary Benefits Act 1976 (re-establishment courses and resettlement units)—

1. (a) in paragraph 2(2), after "counties" insert ", of county boroughs"; and
2. (b) in paragraph 4(2), after "county," insert "a county borough,".

The National Health Service Act 1977 (c. 49) 11.—(1) In section 22 of the National Health Service Act 1977 (co-operation between health authorities and local authorities), in the Table, in column 2 of the entry relating to an Area or District Health Authority in Wales, after "county" insert "or county borough" and after first "district" insert "in England". (2) In section 28A of that Act (power to make payments towards expenditure on community services), in subsection (2) (b), after "district council," insert "or to a Welsh county council or county borough council,". (3) In section 128(1) of that Act (interpretation)

1. (a) in the definition of "local authority", after "county council," insert "a county borough council,"; and
2. (b) in the definition of "local social services authority", after "county," insert "of a county borough".

The Health and Social Services and Social Security Adjudications Act 1983 (c. 41) 12. In Part II of Schedule 9 to the Health and Social Services and Social Security Adjudications Act 1983 (meals and recreation for old people)

1. (a) in paragraphs 1 and 2, after "council" insert "or Welsh county council or county borough council" in each place; and
2. (b) in paragraph 3, after "district councils" insert "or Welsh county councils or county borough councils" in all places.

The Children Act 1989 (c. 41) 13. In section 105 of the Children Act 1989 (interpretation), in the definition of "local authority" in subsection (1), omit "and Wales" and after "City of London" insert ", in relation to Wales, the council of a county or a county borough". The National Health Service and Community Care Act 1990 (c.19) 14. In section 46 of the National Health Service and Community Care Act 1990 (local authority plans for community care services), in subsection (3), in the definition of "local authority", after "county," insert "a county borough,".").

The noble and learned Lord said: My Lords, this amendment has been spoken to already. I beg to move.

On Question, amendment agreed to.

Clause 22 [Fire services]:

Lord Prys-Davies moved Amendment No. 41: Page 17, line 35, leave out ("to whom the proposed scheme relates").

The noble Lord said: My Lords, I believe it will be for the convenience of the House if, in moving this amendment, I speak to Amendment No. 43. The purpose of these two amendments is to widen the class of persons who can make representations to the Secretary of State about a proposed fire service combination scheme under Clause 22 or a proposed police amalgamation scheme under Clause 23 and to ensure that they will be considered by the Secretary of State in arriving at a position.

As the clauses now stand, the Secretary of State is only under a duty to give consideration to the representations made by any authority to whom the scheme relates. We believe that it is perfectly legitimate for the Secretary of State to be under a duty to take into consideration representations from other sources. For example, it is envisaged that representations may be made not only by a fire or police authority but also by a principal council for an adjoining authority or a trade union whose members are employed in the service. So the fire or police scheme could have implications for many authorities and organisations. Therefore, their representations should receive the consideration of the Secretary of State.

Our concern lies in the inhibitive wording of the two subsections. In Committee we were told by the noble and learned Lord that the department was reluctant to spell out a specific duty to consider representations from an authority which might have no direct interest in the particular proposal. But in our view that is not necessarily a satisfactory reason for rejecting the amendment. Are we to say to the trade unions or to an adjoining council that Parliament has not placed a responsibility on the Secretary of State to take into account their representations? We shall be grateful if the noble and learned Lord can look favourably on at least the main thrust of these two amendments, although their wording may not be perfect. I beg to move.

Lord Rodger of Earlsferry

My Lords, in one sense I do not know that there is a great deal between us on this matter. As I understand it, the effect of the amendment would be to require the Secretary of State to consider representations about a proposed scheme from any Welsh local authority whether or not it was directly affected. I believe I said in Committee that I have no doubt that in these cases, before he makes any order under either of these provisions, my right honourable friend the Home Secretary will want to take account of all relevant representations.

As I said in Committee, the effect is that if a relevant representation is made; if he has put before him matters which are relevant to the decision, then, as the noble Lord will be aware, his failure to take into account such relevant considerations would render his decision vulnerable to judicial review. Nonetheless, when spelling the matter out on the face of the statute, it seemed proper to put the duty in the terms that it stands in in the Bill as drafted.

Having said that, I am happy to take this matter away and consider the drafting of the provision to ensure that we have caught all those authorities whose interest in the contents of the combination scheme is sufficiently close to justify imposing a duty on the Home Secretary in relation to the representations. I am happy to take that away and have another look at it. I think that that is what the noble Lord has in mind and I am happy to do it.

10 p.m.

Lord Prys-Davies

My Lords, I am particularly grateful to the noble and learned Lord for that response. The gap between us is not wide, but the wording possibly needs to be redefined. As I have said, I am grateful for the Lord Advocate's response and I am happy to leave the matter there. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved].

Clause 23 [Police]:

[Amendment No. 43 not moved.]

Clause 24 [Provision of services by one new principal council for another]:

Lord Williams of Elvel moved Amendment No. 44: Page 19, line 1, leave out subsections (4) and (5).

The noble Lord said: My Lords, in moving Amendment No. 44, which stands in my name and that of my noble friend Lord Prys-Davies, it may be for the convenience of the House if I speak also to Amendment No. 45. I say straightaway that these two amendments are of a probing nature. Indeed, they are alternatives. There is no particular difference in substance between them. Both seek to achieve the same point, which is that through these amendments we should like the Government to clarify in greater detail than was spelt out in Committee by the noble and learned Lord the Lord Advocate the restrictions in the exercise of the power that will be imposed by the regulations that we are discussing under Clause 24(5) (a) and, more particularly, whether the activities of the local authorities which are subject to compulsory competitive tendering will be precluded by regulations from being the subject of service agency agreements either immediately or, as has been suggested in some documents, at the expiry of a transitional period of two years.

This is a key clause in facilitating the concept of what are known as "lead authorities". It will permit authorities to buy services from other authorities and is intended to overcome certain limitations in the Local Government Act 1972 and in the Local Authorities (Goods and Services) Act 1970, so that the lead authorities can develop and sell their services to adjoining authorities. This is slightly tangential to my main argument, but in that connection I should be grateful if the noble and learned Lord could reassert or confirm the statement that he made in Committee to the effect that the Government do not consider it necessary for local authorities to be able to compete for contracted-out contracts outside their areas. It seems to us to be the absolute essence of Clause 24 and these plans that an authority must be capable of providing services to an authority in an adjoining area.

When Welsh Office officials have been quizzed on the point they have said that the Government intend to exclude from service agency agreements those activities which are required to be exposed to compulsory competitive tendering. If that were the case, considerable inroads would be made into the lead authority concept. It would rule out all services which are the subject of CCT. For instance, CCT for professional white collar services will become mandatory in October 1997. There will be CCT for security work, on-street parking, vehicle fleet management, 50 per cent. of housing management in group 1.B authorities, removal of competition and free requirement for highways work, and a whole series of issues will become housing management in 1998. A whole series of items will become subject to compulsory competitive tendering and they will therefore be removed from the scope of service plans between local authorities.

For some reason—and I look at the White Paper—Ministers seem to believe that it would not be desirable for such arrangements to apply to services subject to CCT under the Acts of 1980 and 1988. I ask the noble and learned Lord the Lord Advocate whether, if local authorities, the new principal councils, could show—and an amendment could be brought forward requiring them to do so—that they guaranteed the full cost of recovery of the services—so there is no marginal selling, remembering the Audit Commission's judgment on the 1970 Act—the Government would take a more relaxed view of the whole question of CCT services being ruled out of service plans. As regards the principal councils, which will be involved in what in any sense will be a difficult operation—the provision of services by one council for another—this would be a welcome relief to a threat that they see hanging over them.

Clause 24(4) permits the Secretary of State to make such regulations as he, sees fit to make for the purposes of this section".

The Government appear to be stating that the regulations will be used to prevent cross-border tendering, if not immediately, at the end of the two-year transitional period that has been mentioned. The noble and learned Lord asserted in Committee that there was an adequate private-sector supply which should be encouraged. If it can be demonstrated that local authorities can compete with the private sector on fair terms, and if we can build that into the Bill, will the Government please accept that it is the right of local authorities, the new principal councils, so to compete not on marginal costings but on a true reflection of costs and in the overall interest of the charge payers and the supplying council?

I say that this is a probing amendment because I want to hear the noble and learned Lord's reply. It is an important point for principal councils and if we do not receive a satisfactory reply I am certain that we shall want to return to the matter at a later stage.

Lord Rodger of Earlsferry

My Lords, as the noble Lord explained, the effect of the amendment would be to enable unitary authorities to compete for work which has been put out to tender by another unitary authority in compliance with the statutory requirements for compulsory competitive tendering.

The Government's policy is to prevent unitary authorities from competing for such work. If I said something else in Committee, I did not intend it. The Government are opposed to what is envisaged in the amendment because they do not believe that such competition would be in the best interests of council tax payers. As I said in Committee, the Government believe that where one has such a system of compulsory competitive tendering, one can expect that the private sector will be available to take on the kinds of work involved and the kinds of risk which may be involved in such work.

If authorities were allowed to compete for such work, the danger is that the council tax payers of one unitary authority could end up funding the costs of any losses incurred as a result of work undertaken by their authority in another area.

What I can say—and this may go some way towards meeting one of the points made by the noble Lord—is that if the local authority associations or any other body were able to come forward with a proposal which enabled such cross-border tendering to take place while at the same time meeting the Government's anxieties about the risk to council tax payers, then my right honourable friend the Secretary of State would be prepared to look very carefully at such a proposal. I hope that that goes some way towards meeting the point made.

The issue of the two-year transitional period is complicated and rather than wrongly state the position, I should prefer to write to the noble Lord about that.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for his response because, as he rightly says, it goes some way towards meeting my anxieties. In moving the amendment I said that I should be prepared to see an amendment brought forward in another place, if that is what the Government want; namely, to have written specifically into the Bill that any cross-border tendering represents a true reflection of costs and is not based on marginal costings; reflects the Audit Commission's interpretation of the 1970 Act; and that there should be overall protection of the interests of the charge payers of the supplying council.

It seems to me that we are getting very close because I am volunteering more than the noble and learned Lord seeks. If we could come together on that, we should be able to reassure district councils about which are to become unitary authorities and which are to become principal councils. They will engage in cross-border tendering and can compete with the private sector.

I believe that we could persuade those district councils that the lead authority concept is not something which is pronounced but not put into practice. We could persuade them that the Government are not trying to penalise the public sector and give preference to the private sector out of dogma, but that they are genuinely trying to find a method of making the lead authority concept work. If that is the attitude of the noble and learned Lord—and it appears so to be from what he has said—then I would be quite happy to reconsider the matter. Indeed, I am prepared to discuss with the noble and learned Lord what amendments there might be to the Bill which could enshrine what he has just said. I believe that to be a fair offer.

10.15 p.m.

Lord Rodger of Earlsferry

My Lords, I should like to consider further the detail of what the noble Lord has said. However, I believe that we have at least moved a little towards one another in the matter. I would not like to go further than I have already gone this evening. Nevertheless, I am quite happy to say that I will look further at the detail of what the noble Lord proposed. It may well be that, when I look at it in more detail, it will prove to be the case that he has, as he said, gone further than I in the matter. If the noble Lord is content to leave the matter there, I am content to look at it again.

Lord Williams of Elvel

My Lords, I am very content to leave the matter on that basis. However, it is a complex subject as the noble and learned Lord rightly pointed out. For example, there is the whole question of what is compulsory competitive tendering, how it works and also the issues as regards the Audit Commission on the 1970 Act. Indeed, the question of how all such things will work is most complex. Therefore, if the noble and learned Lord has any difficulties when looking at the matter with his officials, perhaps he will contact me. I shall then consult those who have been briefing me to see whether such difficulties can be resolved. I am very happy to withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

[Amendment No. 45 not moved.]

Lord Prys-Davies moved Amendment No. 46: Page 19, line 14, at end insert: ("( ) For the purpose of the exercise of powers under the Local Government (Records) Act 1962 with regard to the acquisition and preservation of archives, where a principal council contains within its area an archive repository empowered by the Local Government (Records) Act 1962, that council, through a joint committee consisting of representatives of the new principal councils concerned, shall administer archive services in respect of the area of the old authorities to which existing collections relate.").

The noble Lord said: My Lords, the above amendment was tabled by my noble friend Lord Cledwyn in Committee. Unfortunately, my noble friend is suffering from a very heavy cold and, although he has been sitting in his place for the past seven-and-a-half hours waiting for the amendment to be called, I had to advise him half-an-hour ago that he ought to retire from the Chamber. I told him that I would do the best I could to look after his amendment.

My noble friend Lord Cledwyn drew attention in Committee to the considerable concern in the Principality about the lack of information as regards the arrangements for the archive services in Wales following the reorganisation proposed by the Bill. Since then, we are aware that many more representations have been made. I am fairly sure that the professional organisations have written to the Welsh Office about the failure of the Bill to safeguard Welsh archives. The Lords Lieutenant, as well as the Society of Archivists, are also deeply interested.

Everyone had hoped that the reference to archives in paragraph 4.21 of the White Paper would have been translated into a short provision in the Bill which would ensure that the archives would be preserved in a safe repository in the custody of knowledgeable officials but with ready access for members of the public.

We have taken account of the observations made by the noble and learned Lord in Committee. The amendment which we now put before the House seeks only to safeguard the public records in the care of the existing counties. The important point here is one made by my noble friend Lord Cledwyn in Committee; namely, that the archives should remain intact. Reorganisation creates many difficulties. The difficulties relating to the archives ought to be resolved in the Bill. For example, if the 21 principal councils each become an archive authority, then the existing repositories will be fragmented. As my noble friend Lord Cledwyn would say, that would be a tragedy.

One object of the amendment is to limit by statute the councils empowered to hold archives to those so, empowered by the Local Government (Records) Act 1962".

Noble Lords will have noticed that the amendment has been altered since it was moved in Committee on 17th January. It now states that a council empowered to hold the archives shall administer the service, through a joint committee consisting of representatives of the new principal councils concerned".

We hope that the additional provision addresses the point made by the noble and learned Lord the Lord Advocate in Committee. We trust that it meets his objection and that he will, therefore, be in a position to accept it. I beg to move.

Lord Teviot

My Lords, I readily accept the amendment that has been put forward by the noble Lord, Lord Prys-Davies. I regret that the noble Lord, Lord Cledwyn, is not here. He has a very nasty cold. He had been looking forward particularly to moving the amendment which did so well at Committee stage.

The noble Lord, Lord Prys-Davies, has explained the amendment very well. One cannot see any possible objection to it because it is so clear and concise. However, there are one or two matters that I should like to raise.

The noble Lord, Lord Prys-Davies, referred to "public records in the area". It should be local records. The wording "public records" refer to the national archives, the Public Record Office. The noble and learned Lords, or noble Lords who are barristers and learned will know that "public" means public policy of the Realm; it is not of public people. The local records contain all official records, parochial records and even private collections. It is really since the two wars that record offices have been established in England, although the earliest record office in Wales was established in Glamorgan in 1939, and the most recent was one in Llandrindrod Wells, for Powys, in 1985.

Before the Bill leaves this House, I hope my noble and learned friend or my noble friend will go a little further than they did at Committee: one must have some assurance that archives are better looked after. From the experience of the abolition of the metropolitan counties, archival provision for many of the boroughs has been inadequate. It is an abysmal, total mess. I shall not name names—and some of the old areas have kept archives in a better way than others. I am sure that my noble friend Lord Elton can expand on this point. Records do not necessarily contain historical archives. When one thinks of archives, one thinks of historical archives; but there are archives being accessed or compiled every moment of the day. Modern archives are extremely important and they must be looked after. There must be retrieval access; councils and local authorities must be able to access them and use them. I hope that my noble and learned friend will deal with the amendment extremely seriously, particularly bearing in mind the awful experience with the abolition of the metropolitan counties.

Lord Hooson

My Lords, the amendment raises a very important and sensitive point. As the noble Lord indicated, the degree to which local authorities which are archive authorities met their responsibilities has varied a great deal in England—and also in Wales, I regret to say. He referred to the fact that it was only in 1984 that Powys County Council set up an archive department. From the Powys County Record Office they attracted a total of 211 visitors in 1991; 356 in 1992; and 648 in 1993. If we assume further growth of business, say, to 750 in 1994, that is on average 15 per week—three a day. Those figures indicate the inaccessibility of Llandrindrod Wells to the bulk of the population and to the potential users of the archives.

I am often asked by people in my part of the world —Montgomeryshire—who have good collections associated with the area, where those records should be sent. I always advise them to send them to the National Library of Wales because one can be sure that there they will not be lost or forgotten about when there is a change in local government.

It is important to consider the future of the archives. Where are they to go? I should like to see much greater co-operation between the National Library of Wales and the local authority archives. In addition, co-operation with local historical record societies is important.

Such is the dislike of Powys County Council in Montgomeryshire, and such is the nature of the communications, that it is very difficult to persuade people to go to Llandrindod Wells to do their research in the archives. They much prefer to go to the Powys Land Museum and Library in Welshpool, which is a voluntary organisation which was set up for the keeping of records many years ago. I remember that in my town there was great resistance to its local treasures being transferred to Powys County Council, where it was felt they would disappear from view.

What I have said illustrates the delicate and sensitive nature of this subject, which is an important one. The keeping of archives is important. How it is to be done —whether through joint authorities or the existing authorities, or whether there should be regional authorities or some link with the National Library of Wales—needs much greater thought than has been given to this subject hitherto.

Lord Elton

My Lords, the noble Lord, Lord Prys-Davies, and, in absentia, the noble Lord, Lord Cledwyn, will know that I am a friend to the purpose that lies behind the amendment. The anxiety which the noble Lord expressed relates principally to historical archives but also to contemporary archives which, I remind my noble friend Lord Teviot, become historical archives rather more rapidly than one would wish at our age.

The principle that needs to be remembered is that the value of an archive is its accessibility, as the noble Lord, Lord Hooson, said. There is a process of concentration, which is beneficial, and a process of dispersal which is to be avoided. However, there is another form of dispersal. I can best illustrate both the value of historical archives and the process that should be avoided by an example.

The documents of the Manor of Adderbury, of which I happen to be Lord, were in my care until some eight years ago when the local historical society became interested. It spent a number of years putting them in order and transcribing a great many. It generated a completely new community spirit, in the historical sense, that had not existed before. It was discovered that the names of many people in the village were the names of people who had lived there in the 14th century. When that process was completed I transferred the documents to the Oxfordshire County Records Office, with a copy of the catalogue to New College, which has the gift of the benefice.

That has concentrated the documents in an accessible place. But when Oxford becomes separated from the Cherwell district council, in which Adderbury lies, the danger is that if nothing is done on the lines suggested in the amendment, future discoveries of medieval documents and any new documents generated will be deposited not with the existing collection of Adderbury papers in Oxford but in some new collection in Banbury. The scholar will then run a 50 per cent. chance of losing out, or at least his work will be doubled.

Therefore I hope that my noble friend will look kindly at the intention underlying the amendment. Perhaps I may suggest two considerations. First, the drafting, although an improvement on Committee stage, is not draftsman watertight. If the Government accept the principle, it is for them to make it watertight. I suggest some linkage with Clause 24. However, if the Government take the issue on board, it is for them to undertake to do so, and I do not need to advise them.

10.30 p.m.

Lord Rodger of Earlsferry

My Lords, we all recognise that this is a sensitive matter. We are all sad that the noble Lord, Lord Cledwyn, was not able to move the amendment on this occasion. It will be a common belief that he did so with particular passion and skill on the previous occasion. Since he is not present, perhaps noble Lords will forgive me if I put the argument at some length so that he can read it.

As I explained on the previous occasion, our approach to all local government services, of which this is one, is, first, that no existing local government functions should be transferred from local government control. I believe that that is accepted. That is achieved by Clause 17. Secondly, the new authorities should be free to enter into arrangements with each other or with the voluntary or private sectors for the delivery of particular services or aspects of a service. We have heard of various means by which these may be delivered. In addition, we have made explicit provision in Clause 24 of the Bill for local authorities to trade with one another.

Thirdly, new types of statutory joint authorities will not be created by the Bill. That is on the basis that their creation would detract from local accountability. On the other hand, the Government recognise that they may be required to set up such systems where otherwise the services would be at risk of breakdown. That is recognised by the provisions of Clauses 28 to 30 of the Bill, which we have seen in so many contexts, which give the Secretary of State his reserve powers.

I have difficulty in tracing the paragraph at present. However, my understanding is that the provisions in the White Paper in relation to archives envisage that the same kind of measures would be put in place as deal with the position of museums and galleries. The paragraph in the White Paper relating to that aspect provides that reserve powers would be in place for a year. Noble Lords know that the provisions of Clauses 28 to 30 envisage a wider measure. Therefore the reserve powers would be available with regard to archives for a period of up to three years. The reserve powers in the Bill are greater than those envisaged in the White Paper.

The noble Lord, Lord Cledwyn, was concerned in Committee that the archive service would be vulnerable during the transitional period. His amendment, which we are considering again today, would have the effect of creating lead authority arrangements. The effect of that would be that an authority which happened to have the repository in its area would be responsible for the archives of all the new local authorities in the area covered by the repository.

As I understand the thinking which lies behind the noble Lord's amendment, he is anxious that the existing collections which have been built up could be broken up as a result of the introduction of the new unitary authorities. He was also worried that they might be housed in inadequate facilities. In one sense, there is a tension between the approach of the noble Lord, Lord Cledwyn, who wishes to keep them in their existing places, and the anxieties of other noble Lords who have pointed out that sometimes records are found in places which are inaccessible. It may seem more useful or more attractive to people to have readier access at a more local level. There is a certain tension in the matter and that is probably why we all recognise that it is a sensitive subject because the arguments go different ways on it.

The Government recognise the importance of the archives service. As noble Lords are aware, my noble and learned friend the Lord Chancellor has a direct interest in the matter. His responsibilities under the Public Records Act 1958 include the approval of archive repositories in Wales as places of deposit for public records. I should say that public records go slightly wider than was suggested at one point, and they would cover such matters as census records and other similar records. The Lord Chancellor is responsible for those places of deposit. At the moment, about one-fifth of all public records are stored in such places of deposit in Wales. It therefore follows that the Government have a distinct interest in ensuring that those repositories continue to maintain a high standard of accommodation and services.

It is the case that, although the Lord Chancellor's responsibility is for public records, those records tend to be held in repositories which contain other records which cannot be classified as public records. But in effect his responsibility ensures that the conditions in which they are kept are also of an adequate standard.

The Government's approach under the Bill is that we do not wish to interfere with local decision-making unless that interference is forced upon us. The whole ethos of the Bill is that it is right to rely upon the good sense and discrimination of locally elected people who are democratically accountable.

At present, there are 12 repositories in Wales, which are managed by seven archives services. Mid and South Glamorgan operate a joint service. The existing repositories are located in 11 of the new authorities. Some local authorities, it is envisaged, will decide to nominate one as the lead authority for the single archive, while others will decide on joint committees. As your Lordships perceive, the Bill does not require or encourage the splitting of archives. It leaves the matter to be dealt with by the new authorities. It would only be where it seemed that the arrangements which were proposed—and they would have to be proposed like other arrangements—were inappropriate that the Government or the Secretary of State would envisage having to intervene, using his reserve powers in Clauses 28 to 30.

The noble Lord, Lord Cledwyn, is really saying that, because of their unique and irreplaceable nature, the archives should be an exception to this general approach in the Bill. For the reasons which I have indicated, the Government would be reluctant to make such an exception. But, that said, I fully recognise that there are deeply felt anxieties on the matter, which is unlike anything else with which we have been concerned. Particularly in view of the fact that the noble Lord, Lord Cledwyn, is not in his place this evening, I shall make a point of drawing these matters to the attention of my right honourable friend the Secretary of State. If the noble Lord, Lord Cledwyn, wished to have an opportunity to express his views on this matter directly to the Secretary of State before the Bill goes to another place, I understand that the Secretary of State would be very happy to have a meeting with the noble Lord on this matter.

With that explanation, I hope that on this occasion the noble Lord will be prepared to withdraw the amendment.

Lord Prys-Davies

My Lords, again I thank the noble and learned Lord the Lord Advocate for his very full explanation of how the Welsh Office sees the development of the service. We shall read his words with great care. I am sure that my noble friend Lord Cledwyn will take up the offer to discuss the position with the Secretary of State. However, if the Government are not minded to accept the amendment, or an amendment along those lines because the wording may not be perfect, I am sure that the House will require further assurances before the Bill leaves this place.

The noble and learned Lord referred to paragraph 4.21 of the White Paper. The concluding sentence of that paragraph reads: The Government proposes transitional arrangements to safeguard provision similar to those described above for museums and galleries". Those in Wales who are interested in archives have been expecting particulars of the transitional arrangements. The White Paper was published in March 1993 and we are still awaiting particulars of the arrangements.

We shall have to press a couple of questions on the Government. For example, what will happen to the existing archives on the day when the new authorities are established? What will happen on the following day? Will the new authorities be entitled to demand the return from the existing repositories of the records relating to their area? Will they be entitled to do that?

The noble and learned Lord the Lord Advocate referred to the Lord Chancellor's responsibility. I understood that in practice the Lord Chancellor's responsibility is exercised by the Public Record Office. But can the noble and learned Lord the Lord Chancellor tell the House what discussions have taken place between the Welsh Office and the PRO since last March? Have the terms and conditions upon which the new authorities can demand the return of their papers been agreed with the PRO?

I shall press the noble and learned Lord the Lord Advocate —not today but certainly when we come back to a discussion of this amendment if it is not acceptable —to confirm that, unless they are a recorded repository, the new authorities will not be entitled to require the documents to be physically transferred to their keeping until such time as the PRO satisfies itself that the arrangements for custody, safe-keeping and public access are satisfactory.

I believe that the House is entitled to receive an unconditional assurance in those terms before this Bill becomes law and indeed before it leaves this House. If, at the end of the day, the noble and learned Lord the Lord Advocate can give us that kind of assurance, will he then please explain to the House the precise terms upon which the public records are to remain in the existing repositories?

Those are some questions which are relevant questions upon which we shall need assurances from the Welsh Office.

Lord Elton

My Lord, does the noble Lord agree, in the absence of the noble Lord, Lord Cledwyn, that one of the noble Lord's anxieties would not be so much whether an authority might demand the repatriation of what it regarded as its documents, but whether the authority that then had them in its possession might obtain money for looking after them? If not, who is going to pay them for looking after the documents that are not repatriated?

Lord Prys-Davies

My Lords, that would certainly be one aspect which needs to be looked at, and that is why I suggest we want to know upon what terms and conditions the documents are to remain in the existing repositories. I have asked a number of questions. I know that my noble friend Lord Cledwyn will read the debate with great interest. He will pursue the matter further and if there is no satisfaction I am sure that he will wish to return to the amendment at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Clause 25 [Service delivery plans]:

Lord Rodger of Earlsferry moved Amendment No. 47: Page 19, line 23, leave out ("before the specified date").

The noble and learned Lord said: In moving Amendment No. 47, I shall speak also to Amendments Nos. 48, 49 and 50, which go together, and I hope that I can be brief.

Amendment No. 48 addresses the undertaking which was given to your Lordships during Committee stage that the Government would consider again the date by which the new councils should prepare and publish service delivery plans. Our proposals provide for draft plans to be published before 1st November 1995 and final plans before 1st February 1996. The Government believe that specifying that date for final plans, together with the requirement to publish draft plans at least as early as the autumn of 1995, will provide sufficient time for interested parties to consider the implications and make representations in relation to their own circumstances and interests. It will also, most importantly, mean that draft staff orders can be drawn up during November 1995 on the basis of each authority's service delivery proposals. In the light of the new provisions of subsection (2), the reference in subsection (1) to a "specified date" becomes superfluous, hence the deletion provided for by Amendment No. 47.

Amendment No. 49 seeks to clarify a matter referred to by the noble Lord, Lord Williams of Elvel, at Committee stage. Its effect is to leave to the discretion of the principal councils the manner in which their plans should be published so as to bring them to the attention of people who may be affected by the performance of their functions. The noble Lord had a little sport at my expense on that matter in Committee and I am happy to come forward and put the matter right in the light of what was said then.

Amendment No. 50 provides for draft service delivery plans to be published and made available for inspection on the same basis as final plans. That will enable all parties with an interest in the service delivery intentions of the new authority to consider the contents of the plan and make representations, if appropriate, at the earliest possible juncture. I beg to move.

Lord Elton

My Lords, I thanked my noble and learned friend for this when it was first mentioned. I said on a second occasion that I would thank him now; I do thank him now. That is enough thanks.

Lord Hooson

My Lords, I have one point only to raise on Amendment No. 47, and it concerns a question of timetable. Obviously this is the merit of putting the dates at which the plans must be prepared on the face of the Bill.

The provision states that the exercise is to be completed by 1st February 1996. But if one then turns to the decentralisation provisions in Clauses 26 and 27, one can see that the two timetables simply do not match. In other words, a decentralisation scheme must be submitted any time before 1st January 1996, which is only one month before the publication of the completed service delivery plan.

I realise that the service delivery plan must only be delivered in respect of the first year, but nevertheless it sets the trend in the unitary authorities. Once the service plan has been set for the first year it is likely to be followed as there will be a number of councillors and officials who will want to adhere to it. Nevertheless, the decentralisation plans will not be in place and the Secretary of State can take up to a year before he approves the scheme. So it seems to me that this provision, though on the face of it highly acceptable, could be self-defeating because it is incompatible timetable-wise with the provisions of Clauses 26 and 27. I am quite certain that this matter will need much further consideration.

Lord Prys-Davies

My Lords, I should like to speak along more or less the same lines as the noble Lord, Lord Hooson. Amendment No. 48 was tabled in response to a probing amendment moved in Committee by the noble Lord, Lord Elton. However, the district council association officers are worried about the timetable proposed in the amendment. At a meeting in the House yesterday evening the officers of the district councils told us of their worries. In their judgment there is every reason for believing that if the delivery plan is to be worked up in any reliable detail it cannot be completed within the timetable proposed by the amendment.

Perhaps I ought to remind the House of the timetable. The election of members to the new councils will not be held until April 1995. The first meeting of the councils will be convened in May 1995. The chief officers will be appointed in June or July 1995. The management boards will probably not be in post until September 1995. Against that background and timetable it will be extremely tight for the officers to produce the necessary plans if they are dependent on policy decisions, as they will be, and to have them ready by 1st November 1995. Indeed, the officers whom we saw yesterday told us that they thought it would take several months before they could get the necessary policy decisions.

Then there is the point raised by the noble Lord, Lord Hooson. There is particular concern that after the plan has been worked up the area committee may have been established under Clauses 26 and 27; and if it has been established, comments will be coming in from the area committee. Indeed, the council could well be driven quickly to make substantial amendments or even to abandon its initial thinking about the plan. That again has timetable implications.

I wonder whether the noble and learned Lord ought possibly to withdraw the amendment until those concerns have been examined by the department in consultation with the officers of the local authority associations.

Lord Rodger of Earlsferry

My Lords, I would prefer to move the amendment and to ask that it be included in the Bill. But that is without prejudice to considering further the points made by the noble Lords, Lord Hooson and Lord Prys-Davies. They courteously raised the matter with me earlier today and that has allowed me to speak briefly to the Welsh Office officials about it. I can say to the noble Lord, Lord Prys-Davies, and to those who contacted him that the Welsh Office officials will be very happy to discuss the kind of concerns which he and the noble Lord, Lord Hooson, have raised in connection with this matter.

As I have mentioned already, the Government are conscious that it is desirable that these draft plans should be available as early as possible if only to assist people who have to consider their futures, their employment and so on, which I know are matters of concern to everyone in Wales. That is one of the reasons why we hope to get as early a date as possible. That having been said, I am very happy to offer the kind of undertaking which I have given.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendments Nos. 48 to 50: Page 19, line 30, leave out subsection (2) and insert: ("(2) Each new principal council shall—

1. (a) publish a draft of their proposed service delivery plan before 1st November 1995; and
2. (b) complete and publish their service delivery plan before 1st February 1996.").

Page 19, line 34, leave out from ("consultation") to end of line 35 and insert ("or as to the contents of the plan."). Page 19, line 41, at end insert: ("(6) Subsections (4) and (5) also apply to the draft service delivery plan required to be published by subsection (2) (a).").

On Question, amendments agreed to.