HL Deb 28 February 1994 vol 552 cc819-905

3.26 p.m.

The Lord Advocate (Lord Rodger of Earlsferry)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report. — (Lord Rodger of Earlsferry.)

On Question, Motion agreed to.

Clause 25 [Service delivery plans]:

Lord Elis-Thomas moved Amendment No.51: Page 19, line 41, at end insert: ("() Each principal council shall prepare and publish each year, before a specified date, a Children's Services delivery plan describing—

  1. (a) the manner in which they propose to provide support for children and families as required in the Children Act 820 1989, and the Guidance and Regulations issued by the Secretary of State under section 7 of the Local Authority Social Services Act;
  2. (b) the local arrangements for the implementation of Working Together: a guide for inter-agency cooperation for the protection of children from abuse and other guidance; and
  3. (c) any arrangements for contracting with other authorities, voluntary organisation, or others for the provision of services;
and in carrying out these planning functions, a local authority shall consult with health authorities, voluntary organisations and other relevant bodies.

The principal council shall make a draft plan available for public comment no less than two months prior to publication. Each principal council shall produce and publish an annual report of performance against service delivery plans, undeciding the manner in which deficiencies will be remedied in subsequent plans.").

The noble Lord said: My Lords, four amendments, three of which stand in my name, give us an opportunity to debate a number of issues that were raised in earlier proceedings on the Bill. In particular, they refer to the delivery of services to children. They refer to the need for each principal council to prepare and publish a children's service delivery plan. They also further develop the argument for a children and young persons' commissioner for Wales. An amendment concerning that was moved by the noble Baroness, Lady Faithful, and supported by the noble Lord, Lord Prys-Davies, and myself. A further amendment seeks to establish for each principal new council a children's complaint representa-tion service— a form of local children's commissioner. Another amendment, which I welcome, in the name of the noble Lord, Lord Prys-Davies, and the noble Lord, Lord Henderson, places obligations on each transition committee to prepare and publish a review of children's services.

I move the amendment against a tragic and obnoxious background: the growth in reported child abuse cases. I do not wish to indulge in an argument about the causes or the specific effects of those cases. At present a particularly obnoxious case is proceeding. I do not wish to comment in any way upon those proceedings. However, I believe that it is sufficient for me to say that we have seen a growth in the reported instances, involving not only parents but also carers. Therefore in this House we need to ensure that we do everything possible when passing legislation on services which affect children to ensure that they are protected.

That obligation is placed upon us not only by legislation of this House but also by the United Nations Convention on the Rights of the Child. Some of those subjects were covered in debate on Wednesday evening of last week in your Lordships' House. However, Article 19 of the convention places an obligation on each state party which has signed the convention. The convention was ratified by the United Kingdom Government in December 1991. It places an obligation on each party to protect children from all forms of maltreatment perpetrated by parents or others responsible for their care and to undertake preventive treatment programmes in that regard. The article states: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child". That article has been ratified by the United Kingdom Government and there is in existence the children's rights development unit which is linked with other organisations representing the other departments of state within Scotland ard Northern Ireland. The organisation works in close collaboration with Children in Wales, which is the umbrella organisation for children's organisations, both statutory and voluntary, within Wales supported by the Welsh Office.

The work of the CRDU is a three-year project to promote the implementation of the convention. It is producing a national agenda for children and the amendment attempts to identify, article by article, where any law, policy, or practice in the United Kingdom fails to meet the standards of the convention and to develop detailed policy proposals to bring UK practice into line with those standards. That involves a wide range of collaboration with statutory and voluntary organisations and professional associations, including leading charities in the field such as the NSPCC.

My concern in moving the amendments is that the changes we are now bringing about in local government in Wales will make it less effective for us to implement the United Nations convention. We are in danger of undermining the specialised services that are currently available for children. In particular, we are undermining the collaboration between various authorities which was deemed to be so necessary by the Government in all the debates prior to the passing of the Children Act 1989.

Those concerns are as follows. There is a concern about the level of resourcing for children's services. By seeking to establish a specific structure for an overview of children's policies, each principal council will be able to monitor effectively the resourcing of children's services, whether it is resourcing for the educational aspects, the social services aspects, the cré che facilities aspects or for housing. Whatever aspects of children's services are being delivered by the authority, an integrated approach will be able to monitor the allocations.

I would argue that, falling short of that, the Welsh Office itself should look at ring-fencing and reallocating in accordance with a specific formula for the resourcing of children's services. However, I prefer the local solution that I propose; namely, that we have within each new principal council a service delivery plan which is specifically related to children's policies.

We were told at earlier stages of our debate that those structures existed and that it was possible to continue a social services committee. At that stage I tried to point out that we had before us in legislation specific clauses which enabled local authorities to abolish social services committees. Therefore, we could be in a position where there would be no effective overview of the services. It was also suggested to me that child protection procedures existed through the existing area child protection committees, of which we have eight in the present structure of counties. It was suggested that those could provide the solution for which I was looking. They are important committees of specific practitioners in the field; they involve local authority areas, the health authorities and police authorities and their functions. They are coterminous with the probation service, so they involve the whole of the penal, social and health services.

I appreciate the work undertaken by those committees, but with the development of the locally maintained schools and education services and with the development of health trusts and their particular emphasis on the purchaser-provider of services, I am not satisfied that we have at present in the plethora of agencies the opportunity for effective strategic planning of children's services. Therefore, I am deeply concerned that we shall not have the mechanism to enable the work of the existing protection committees to take place. That also applies to the work undertaken by the Welsh Office and other departments, post-Cleveland, in preventive activity on child abuse, and training and retraining for early identification by the health service, the police service, the social service or the educational service of any signs of possible abuse. All those important initiatives will no longer be effective because of the way in which we shall reform local government. For those reasons, I ask the Government to take very seriously the proposals made in the amendments for a specified service delivery plan for children's services.

Now I turn to the question of the inspectorate or complaints procedure and a commissioner. The proposal for a complaints service to look at the needs of children in each principal council is for a local children's commissioner or local ombudsman. That would be in the form of a representation or advocacy service and would relate not only to the functions of the principal councils as proposed in Amendment No.73, but also to the associated functions of health authorities and NHS trusts. That gives the opportunity for a comprehensive advocacy or representation service for children within each authority area. In my view, it would parallel the work undertaken by the area child protection committee.

It would also provide an opportunity for members of local authorities to be directly involved in that work. It would clearly be a statutory plan for an authority and a statutory representation service by the authority. There is the opportunity for members democratically to overview the effectiveness of a procedure— an option which is not directly available with the work of area child protection committees.

The other recommendation in the amendments is for a children's commissioner for Wales. This is an attempt to ensure that overall, throughout the services of the Welsh Office, regard is taken of the needs of children and young persons; that the services for them are monitored; and that complaints at national, Welsh Office level are investigated. Through the work of the commissioner the principles laid down in the United Nations convention, to which I referred, should be implemented and there should be co-ordination between voluntary organisations and the statutory services.

Of course, it is important that such a commissioner should be an independent officer. That is why we propose that he should be appointed by Her Majesty on the recommendation of the Secretary of State for a period of five years. There are comparative models which can be looked at in other countries. I recommend to the House particularly the functions of the commissioner as set out in the Children, Young Persons and Their Families Act, passed by the New Zealand Parliament in 1989. That country is not dissimilar to Wales in many respects. In New Zealand the commissioner has the functions of monitoring and assessing the policies of any departments, persons and bodies which provide a service for children. The commissioner has the power to encourage the development of policies and services, to promote research, to inquire generally into matters relating to children, to receive representations from the public and to increase public awareness. In other words, there is a broad remit, and it is the kind of remit we should like to see for a children's commissioner for Wales.

I wish to pay tribute to the work of the voluntary societies in the field. I have mentioned the NSPCC and the other societies which co-operate within the umbrella organisation of Children in Wales. That organisation is relatively new. It is resourced by the Welsh Office but, in my view, it is not sufficiently powerful as an agency of overview for children's services. I know that many of those who are part of that forum are aware of that. It is all very well to have an overall forum; it is much more effective to have a commissioner who can become a guarantor of children's rights. As I said at the beginning, I put those arguments in the context of deeply serious, disturbing and increasing instances of child abuse.

I have chosen not to dwell on the specifics of that abuse. I could have done so, but it is sufficiently grievous and painful for the people concerned— both for the psychologically damaged perpetrators and for the sufferers from such a practice— for us not to repeat at length what it means in terms of damage to individuals, and in particular to children whom it is our obligation in this House to protect. I beg to move.

Baroness Faithfull

My Lords, I rise to support the amendment of the noble Lord, Lord Elis-Thomas. As it is so important these days, I wonder whether we could consider the question of cost. Perhaps I may hitch all that I have to say on the question of the cost to the country.

If there are to be, as appears to be the case, a large number of unitary district authorities, they will be small authorities. They have the obligation to implement the various different children and young persons' Acts, the courts' preventive work and the training of social workers in that work. A large unitary authority can have one set of systems that apply to the whole county. But a number of small districts will not be able to supply the needs of children in each small area. Therefore I agree with the noble Lord, Lord Elis-Thomas, that one needs to have an overall commissioner who will bring about co-operation and co-ordinate the work of all the areas so that overlapping does not occur.

Perhaps I may give some examples. Let us say, for instance, that training is needed in the way that children who have been sexually abused are helped. A small district cannot run a full course. And if it does, to have that one team in that one area will be very expensive. If, on the other hand, one has a commissioner for children to co-ordinate training over all the districts in a larger area, a good service will be provided at much less cost.

Perhaps I may move on to the question of secure accommodation. (I hardly dare talk about this subject because it will give rise to a great deal of discussion on a Bill that will come before this House.) Let us suppose, for instance, that (as things stand at the moment) each local authority must provide secure accommodation for children. Such provision is very expensive. If every district is to have to supply that service it will become very expensive. If on the other hand there is an overall scheme for all the district authorities which the commissioner could negotiate and work out, the provision would be much less expensive and the service would be as good.

If the proposal is simply to have good co-ordination — and I speak with very deep feeling— we know what happened in London with all the London boroughs having to co-ordinate services but without having any one system or any one person to co-ordinate children's services. I think I am right in saying that there was a committee meeting every day as between one borough and another. If one has a children's commissioner, that commissioner would be able to co-ordinate the work of all the districts and not just have to negotiate as between one district and another.

On the question of co-ordination with the district health authority, if there were one commissioner who could co-ordinate the work for all the districts, the process would be much less costly and time consuming. That also goes for negotiations with the voluntary organisations. Voluntary organisations do not have the time to negotiate with the 37 district councils, whereas, if there were a commissioner, they could negotiate with that one person in order to cover all the district councils.

Furthermore, the proposal would make for a unitary sense of care for children throughout Wales. It would make for consistency. It would make for a better service. If, for example, one has a group of children who are very, very difficult and who need help, no one authority can set up one home or one system for those children. They need to be co-ordinated throughout the area. I therefore support the proposal for a children's commissioner for Wales to co-ordinate the work and instil consistency throughout. It would be more cost-effective than every district having to supply its own services for very few children, which would not really answer the purpose.

Lord Swansea

My Lords, I must confess to some puzzlement regarding the wording of this amendment. In the penultimate line (it is on page 2 on the Marshalled List) appears the word "undeciding". That to me is completely meaningless in this context. Perhaps the noble Lord, Lord Elis-Thomas, would communicate what is intended?

Baroness David

My Lords, I should like to concentrate on Amendment No.57, on the children's rights commissioner. Like the noble Baroness, Lady Faithfull— although the noble Baroness did not mention the fact— I was a member of the advisory group brought together by the Gulbenkian Foundation to look in detail at the idea of a statutory children's rights commissioner in the UK. That was in 1991. It produced the report Taking Children Seriously. Unfortunately the Government have so far not accepted that idea, which has been found to be so valuable in other countries.

Here there is an opportunity to introduce such a commissioner on a limited scale, in relation only to local government in Wales. It could act as a very valuable forerunner to a statutory commissioner or commissioners operating throughout the UK and able to represent children's needs and rights at central and local government level.

Surely no one can argue with the need for a statutory office to represent the citizens who have no vote and no effective voice in local or national politics. Government ratification of the UN Convention on the Rights of the Child two years ago, in December 1991, was very welcome. But there is no sign of rigorous action to ensure that even the basic principles of the convention are properly respected when decisions which affect children are being made on central or local government action.

This new clause would create an office with powers linked to the convention. The commissioner would ensure, for example, proper respect for the principle in Article 3 of the convention that the best interests of children must be of primary consideration in all actions concerning them; and, in line with Article 12 of the convention, that the children themselves have an opportunity to express views and have them taken seriously and to be heard in any administrative proceedings which affect them.

The Government sometimes seem to suggest that the Children Act does all that is needed for children's rights and welfare in England and Wales. That is an exaggeration. It is an Act that we all welcomed (although we would like to see implementation backed by necessary resources). But it does not cover all aspects of local authority services to children; it is only a staging post towards proper respect for full implementation of the convention.

The Government should welcome this proposal as innovative and fully in line with the commitment made at the world summit for children in 1990 by Mrs. Thatcher and 70 other heads of government that: The well-being of children requires political action at the highest level". It is surely obvious that children are a special case and that their lack of power demands positive and special forms of representation to ensure that their perspective is respected in policy development.

Finally, surely there is a particular case to be made for this proposal al a time of such radical reorganisation of local government to ensure that children's services and children themselves do not suffer. We heard from the mover of the amendment, the noble Lord, Lord Elis-Thomas, that that is something that could very well happen. I hope that the Government will be prepared to take on Amendment No.57 and create a children's commissioner for Wales. It would be a very helpful experiment for the whole country.

Lord Hooson

My Lords, I support these amendments. I should like to say a few words in particular about Amendment No.57. It seems to me that if one is to have innovation and experiment, Wales, being a geographical unit and having its own Secretary of State, is a very good place to have it. At the moment there is an overwhelming case for a commissioner specifically charged with children's welfare. Where better to try that out than in a place like Wales?

It is essential to have the social services as close to the ground as possible. I often think that one of the mistakes that we make in modern life is to establish chains of communication on a bureaucratic level. The actual communication is never as good as it ought to be. We have the framework for it but often we do not achieve it.

Nevertheless, I was greatly impressed by the speech of the noble Baroness, Lady Faithfull. I believe, particularly having regard to the innovations that have now been introduced into Welsh local government, the size of Wales and its population, that this provision would be a cost-effective measure as well as an effective one. A commissioner specifically charged with looking after the welfare of children, complaints about children, services and so on covering a population of slightly more than 2.5 million people is likely to be not only effective in practice but also extremely cost-effective.

Lord Henderson of Brompton

My Lords, perhaps I may make a small contribution from the Cross Benches, though I am not a Welshman. I should like to endorse in particular what the noble Lord, Lord Hooson, said. It is important that we should dip our toe into this area and, as he said, what better place to do it than in Wales.

My name is attached to Amendments Nos.57 and 84. I should like this provision to be simply a pilot scheme which could be extended as soon as possible to the rest of the United Kingdom, where children are just as much in need of a commissioner as they are in Wales. One takes this very first opportunity to press the Government on the proposal because the Welsh area is an ideal place to start, as has so eloquently been said. There are well over 13 million children in the rest of the United Kingdom. I do not know how many there are in Wales but certainly it would be a more manageable number and Wales is an ideal place in which to start.

The noble Baroness, Lady Faithfull, made some important points about co-ordination, which is notoriously bad on children's services. If it were not for the voluntary services, I do not know what would happen. In all parts of the United Kingdom we rely on the voluntary services. They should not be left to deal with such an important matter on their own. Government services are widely separated in their responsibilities for children and do not seem to have adequate co-ordination; and, as the noble Baroness said, that is also the case in local services. It would be invaluable to have the children's ombudsman as a co-ordinating factor. The other important area is to promote compliance with minimum standards. That has been mentioned on both sides of the House.

I understand that the amendment in which I am particularly interested in this package commends itself to the House. I hope that it commends itself to the Government as the ideal experimental basis for the idea of an ombudsman recommended universally.

The other amendment in the package to which very little attention so far seems to have been paid concerns transitional provision; namely, Amendment No.84. I should very much like to have a detailed answer from the Government to that amendment. None of us knows what will happen in the interval. It is very clear that large sums of money will be involved. We ought to know how those sums will be allocated and that they will not be forgotten.

Amendment No.84 describes what each transition committee ought to be responsible for. As indicated, we feel that each committee should prepare and publish a review by 31st December 1995. I believe that the sums of money are considerable. I should like to know whether the informed guesses with which we have been provided are of the right order.

It is important that children should not suffer in the transitional period and that the needs of the services which provide for them are protected. The amendment provides for all aspects of services for children which are currently provided both at county and district level. Unless the transitional committees collect that information, I do not believe that there will be a proper basis for continuation beyond the transitional period in the future. I should be very grateful indeed for the Government's response to the proposals in that amendment. I very much support the whole package of amendments so ably introduced by my noble friend.

Lord Elton

My Lords, Amendment No.57 creates a person who shall exist for many years to come. The other amendments in the group consider the problems of transition. I rise simply to draw the attention of my noble and learned friend to the importance of someone being in a position not unlike that of the proposed Children and Young Persons' Commissioner for Wales — indeed, that applies to England as well, though it is not the subject of the Bill— to look after children at risk during the turbulence of reorganisation.

As I understand the matter, local authorities keep registers of children at risk of non-accidental injury. Those registers are instrumental in obviating a significant number of tragedies, such as that originally suffered by Maria Caldwell, whose death caused those registers to be implemented under statute in the days of the noble Lord, Lord Wells-Pestell, who in this House was Minister for Health.

I hope that my noble and learned friend will bear in mind that such a function needs to be carried out and is not provided for in the Bill as drafted. I am not certain that Amendment No.57 provides what is needed because a commissioner without either pay or powers will not achieve a great deal. I presume that this is not so much a probing amendment as a demonstrative amendment which we hope that my noble and learned friend may prevail upon his friends in another place to consider further and turn into a working operation. However, I believe that the principle is sound.

4 p.m.

Lord Prys-Davies

My Lords, I support all the amendments that have been moved by the noble Lord, Lord Elis-Thomas. Perhaps it would be for the convenience of the House if I concentrate on Amendment No.84 and then speak to Amendment No.57.

The point was made by the noble Lord, Lord Elton, that the destruction, disorientation and reshuffling of officers brought about by reorganisation inevitably contains an element of uncertainty. In that kind of situation the value of the survey, review and recommendations embraced in Amendment No.84, tabled in my name and that of the noble Lord, Lord Henderson of Brompton, would be twofold, if I may be precise.

First, it would provide the newly formed council with a firm baseline from which to start its activities in support of children; and the new council would therefore be relieved of an initial task which would otherwise make demands of staff heavily committed on other matters. Secondly, it would be of value to children. It would ensure that their day-to-day services, co-ordination and planning would not suffer disruption when responsibilities are handed over to the successor authority.

The noble Lord, Lord Henderson, developed the argument— as did the noble Lord, Lord Elis-Thomas, in respect of an earlier amendment— but I should like to return to what was said by the noble and learned Lord the Lord Advocate in Committee in response to an amendment moved by the noble Lord, Lord Elis-Thomas. I believe the noble and learned Lord was then saying, "You should not single out the needs of children rather than the needs of all categories of vulnerable groups". Of course he has a point. But in case he ventures to repeat those arguments this afternoon I must say to him that the amendments are defensible on several grounds and three in particular.

First, as my noble friend Lady David said, children are unable to defend themselves; they have no power; they have no clout; they are unable to have a direct say regarding the way services for themselves ought to be administered, and they are too young to bring political pressure to bear upon the authorities in order to bring about the necessary changes. That is one reason why the amendments can be distinguished.

Secondly, the far-reaching reforms launched by the Children Act 1989 are still in the process of being implemented. Many noble Lords will recall being in this Chamber when the noble and learned Lord the Lord Chancellor described the 1989 Act as representing, the most comprehensive and far reaching reform of child law which has come before Parliament in living memory". — [Official Report, 6/12/88; col.488.] We in Wales have to ensure that the Children Act is brought into full effect as soon as possible and that the pace of implementation will not be slowed down by reorganisation.

Thirdly, the amendment will go some way to ensure that we in Wales implement the provision of Article 3 of the United Nations Convention on the Rights of the Child, ratified by this Government in 1991. The noble Lord, Lord Elis-Thomas, and my noble friend Lady David dwelt upon the significance of that United Nations convention. Those three arguments apply with equal force to Amendments Nos.51 and 84. I therefore hope that the noble and learned Lord the Lord Advocate will ensure that they are given careful consideration by the department.

I turn to Amendment No.57 which proposes the introduction of a children's commissioner for Wales. I am particularly pleased that the noble Baroness, Lady Faithfull, spoke in support of the amendment, as did my noble friend Lady David and the noble Lord, Lord Henderson of Brompton. Those of us who come regularly to the House know that the House listens with great respect to their views. I am particularly pleased that they support the amendment. I shall not attempt to traverse the ground which was covered so admirably by the other speakers. Again I should like to concentrate on the criticisms of the amendment made by the Government in Committee.

Noble Lords who were present in Committee will know that the Government resisted the amendment on two main grounds. First, they said that the rights of children are already safeguarded by the Children Act 1989 and therefore we do not need a commissioner. As I indicated, the Children Act is an important piece of legislation for children. It covers child-care, child protection and the consequences of divorce and separation. But it does not cover all their rights. The 1989 Act is silent on the children's right to education; it is silent on their right to health; and it is silent on their right to housing. Those are all important elements in the well-being of any child. I hope therefore that the noble and learned Lord the Lord Advocate will not attempt to defeat the amendment by referring to the Children Act 1989.

Secondly, the noble and learned Lord the Lord Advocate claimed that the rights of children in Wales were already protected by the existing system of the ombudsman. I made some inquiries and came up with some interesting replies. Around 3,000 are looked after in Wales. But the Welsh ombudsman— I have a high regard for him and know him personally— did not receive a single complaint direct from children in 1993. I am not sure that that piece of information allays all our anxieties. However, we have been told that it is not envisaged that the commissioner should have a power to investigate individual complaints; what is envisaged is that he should investigate whether the existing complaints procedures are effective or exist at all, particularly in those areas which are not covered by the Children Act 1989. Indeed, the commissioner may be attracted to consideration of whether the ombudsman complaints system in Wales, as it received no complaints in 1993, is functioning and protecting the rights of the child.

The children's commissioner would be an important source of information and guidance, ensuring that the broad policy— described by the noble Baroness, Lady Faithfull, as a consistent policy, and I accept that it is an improvement— based on the principle of the best interests of the child is paramount and would mark the administration of all main local government services throughout Wales and all local authority and health agencies. That would represent a huge step forward. Of course it would be innovative in terms of the UK experience. I hope that if the Welsh Office accepts the principle of the amendment, it will not instruct or advise the noble and learned Lord the Lord Advocate to refuse it this afternoon but to have second thoughts.

It is fair to say— I am sure that those of your Lordships from Wales will agree— that the temper of the Welsh Office is essentially administrative rather than creative. But here is an opportunity for it to be creatively committed to institutional arrangements for Wales which reflect its interest and its ambitions. I hope, with the noble Lord, Lord Henderson, that it will be a precedent for the rest of the United Kingdom.

Lord Rodger of Earlsferry

My Lords, the debate on this matter touched on many points. But it would probably be sensible to start where essentially the whole discussion starts; that is, with the transitional arrangements. Obviously one is facing, first, the transitional position. That topic was raised by a number of noble Lords, especially the noble Lord, Lord Henderson of Brompton. He asked what the position was.

The Government's position on transitional matters can be found in Clause 45. There one finds a fairly elaborate provision on the setting up of transition committees which are charged with having regard to transitional matters. The power is very wide indeed. One sees in Clause 45(4) that a matter is a transitional matter, if, in the opinion of the transition committee for that council, it is one which it is expedient for the committee to consider in order to ensure that the council will be able to function effectively as from 1st April 1996". It would hard to think of a wider definition. It is also correct to say that it certainly would be one which would be wide enough to include all the kinds of matters relating to the provision of services to children which have been discussed by your Lordships in connection with local authorities. However, if it so happened that one of the transition committees, or indeed a number of them, failed to take these matters into account and paid no attention, for example, to the provision of children's services, and the Secretary of State thought that was inappropriate, your Lordships will see that under subsection (5) the Secretary of State may give a direction requiring a particular transition committee, or a number of them, or every transition committee to consider any such matter as may be specified in the direction. So already one has in the heart of Clause 45 not only a very wide power for the transition committees themselves but a reserve power for the Secretary of State in connection with transition committees.

If one moves on a stage, one has in Clause 25 the following provision: Every new principal council shall… prepare and publish a plan Ca service delivery plan')— (a) describing the manner in which they propose to perform their functions", during the year and, (b) giving particulars of the arrangements for organisation and management which they propose to adopt". That, again, is a wide provision and it is a provision which one would expect to be carried out properly by the local authority.

That brings us to the point where the Government's position perhaps departs from that of some noble Lords. The Government fully share the anxiety of noble Lords for the proper provision of care for children and young people. They are concerned that this will be properly safeguarded during the transition period and beyond. However, the Bill is about the provision of services by local government. I have been at pains to stress on a number of occasions that the Government's underlying philosophy in relation to the Bill is that local government is essentially just that; it is local government, where we expect people, elected locally, to take responsibility for the provision of services to their areas. We believe that people who have been elected as councillors for their areas will be conscious of the need to provide proper services for all the people in their area, and— by no means least— for the vulnerable people, including— by no means least again— children and young people. We believe that local authorities will do that.

It is recognised that, especially until the first elections are held after the councils have been in place, there may seem to be a lack of control. For that reason, as we have seen on a number of occasions, the Bill contains in Clauses 28,29 and 30 a means of putting into place a system of joint working arrangements. I particularly refer to those in reply to my noble friend Lady Faithful!. She raised the question of the increase in the number of unitary authorities and said that it would be difficult for those authorities to be able to deliver all the necessary services especially at a financially satisfactory cost. It is precisely for that reason that the philosophy underlying the Bill involves the authorities being enabling authorities and not necessarily in all the cases the authorities which will deliver all the services.

In particular, as we have seen on a number of occasions, it is clearly envisaged that there may very well be certain services of a specialised nature or certain other services which by their nature may best be delivered by a series of arrangements with other authorities. That can be done in a number of ways envisaged under the Bill and under existing legislation. In particular of course the Bill recognises that a reserve power up until the timing of the first set of elections may be necessary. So one finds in this series of clauses— Clauses 28,29 and 30— reserve powers for the Secretary of State to obtain information as to the delivery of services and then a power in the first place to give a direction to councils requiring them to make specified arrangements in relation to the exercise of specified functions. That power is widely expressed but it quite clearly would be capable of being used if my right honourable friend the Secretary of State were to conclude during the relevant period that satisfactory arrangements for the exercise of the functions relating to children were not going to be provided, or were unlikely to be provided on or after 1st April, or were not being provided.

These powers exist in the first place to encourage authorities to enter into a working arrangement if they will not do it voluntarily and in the final analysis there is the ultimate power to set up a joint authority. These are the ways in which we believe that it will be possible for the unitary authorities as envisaged under this legislation to deliver the kind of services which will be required in order to provide the necessary level of service to children as in other areas. For these reasons we do not believe that it is necessary to have separate provision for service delivery plans for children, nor that the scheme as envisaged in the Act will fail to work as my noble friend suggested.

In addition, one of the proposals in the amendments is for a children and young persons' commissioner. I repeat what I said in Committee. It seems to the Government that in this matter the children are not in any way to have their rights devalued. They have rights whether under the Children Act or other legislation. These rights should be enforced in the same way as the rights of other persons. In addition, there is a proposal for a Children's Complaint and Representation Service to be established. Again, as far as the Government can see, that is an unnecessary proposal since the 1989 Act already makes provision for local authorities to establish complaints procedures. We have no evidence that they are not working.

It is very important that where responsibilities are put on local authorities it should be quite clear that they do indeed have them and that they are ultimately responsible to those who elect them for the discharge of those responsibilities. It is not desirable that those responsibilities should somehow or other be diluted or diverted from the local authorities on whom they have been placed.

In summary, therefore, we believe that the services to children are adequately safeguarded under the existing legislation and in particular under the elaborate Children Act with the associated guidance and regulations. Nobody has denied that local authorities in Wales, as elsewhere, have worked hard to implement that legislation over the past four years. The fruits of their labours will not be lost but will be inherited by the new authorities and carried forward by them. It will be on them that the responsibility for all children's services will lie. As I say, they will be required to plan the delivery of the services and those plans, under the legislation, will be available for inspection by the public and the other agencies involved. In the long run and as a backstop, there are the reserve powers of the Secretary of State.

Having regard to that whole package, the Government believe that the services to children will be carried out well and adequately by the new authorities when they come into effect. In the circumstances, I ask the noble Lord to withdraw the amendment.

Lord Elton

My Lords, before my noble and learned friend sits down, as he was unable to address himself directly to the question of which I gave him notice about children at risk and registered on the register of children at risk and non-accidental injury, will he write to me to explain how their interests are to be protected when a register which covers a large area is broken up into several registers which deal with several smaller areas? If my noble and learned friend can reply to that now I shall be grateful, but if he wishes to do so by post I shall of course understand.

Lord Rodger of Earlsferry

My Lords, I believe that the answer will be by reference to the possibility of joint working. I believe it is preferable that I give my noble friend a definitive answer in writing.

Baroness Faithfull

My Lords, before my noble and learned friend sits down, may I have a reply on the process of provision? He has spoken about Clauses 28,29 and 30 and he said that each local authority must provide, which is true. For instance, when considering mental health child guidance clinics and negotiations with voluntary organisations, the district health authorities will have 37 district councils approaching them. What will happen? Each local authority will try to provide, but they need an overall service and not just a service for that par: icular local authority. For instance, there would not be 37 psychiatrists in Wales to provide the mental health services required. As regards voluntary organisations, if there is a need for accommodation for, say, deaf-blind children, only about four or five authorities would need such accommodation. They would have applications from all the local authorities.

I am worried about the process and the work which it is going to give to all the districts, the health authorities and the voluntary organisations. That point is not covered in the three clauses which my noble and learned friend mentioned.

Lord Rodger of Earlsferry

My Lords, I hope that my reply will satisfy my noble friend. I simply point out, as I did in other connections, that, for example, Clause 24 makes provision for a new principal council to enter into an agreement with another council for the provision of services. It is recognised that not only in this area but in other associated areas there may well be situations where it would not be desirable for all the local authorities to act individually. That is well understood. We would expect that that fact would be recognised by the people most concerned about this matter; namely, the local authorities which will be providing the services.

In that situation we would expect that the local authorities themselves would in fact see the importance of uniting to provide various services in these ways. Of course, not all would be able to provide individually the necessary services but would do so in the way I have outlined. For that reason the Government believe that the kinds of anxieties which my noble friend expresses will not in fact come to pass in the way she envisages.

4.30 p.m.

Lord Elis-Thomas

My Lords, I thank noble Lords on all sides of the House for their support for this group of amendments and particularly for Amendment No.57. I was disappointed by the Government's reply. It seems to me that they have been unable to take their thoughts further, although they have had an opportunity to do so. As regards the point raised by the noble Lord, Lord Swansea, it is what we call at the Welsh Language Board "gwall teipograffig". Since tomorrow is St. David's Day, I shall let that stand on the record.

My anxiety is that in the points made in the debate we have had a very clear statement of the need to ensure that the children's services are fully protected. I am particularly grateful to the noble Baroness, Lady Faithfull, for what she said and also to the noble Lord, Lord Hooson, who emphasised the possibility of developing this service in Wales— as did my noble friend Lord Henderson— as an example perhaps to the rest of the United Kingdom. This is a matter which clearly does not commend itself to the Welsh Office.

I have a number of brief points in response to the Minister which I wish to place on record. Do I understand him as now saying that he expects that in the area of children's services, particularly specialised services, the working together provisions of the Bill are expected by the Welsh Office to be implemented by local authorities? Were they not to be implemented, would the reserve powers of the Secretary of State then be used?

The argument that he put forward earlier was fascinating. He said that because local authorities had statutory responsibilities in this area they were expected to deliver them. However, the rest of the Bill, including some parts relevant to this debate, are hedged around with Welsh Office guidelines, or the threat of them. It seems to me that not to accept the argument for guidelines in the area of children's services while advocating them in others is a small contradiction. Small contradictions often emerge from the Welsh Office, but as tomorrow is St. David's day the Welsh Office is generally an excellent government department.

The other serious point I make is that in not accepting these amendments the Government are in danger of undermining their own advice to local authorities. In the document Working Together under the Children Act 1989 it was emphasised that co-operation at individual case level needed to be supported by joint agency and management policies for child protection consistent with their policies and plans for related service provision. If that was true in the advice given under that Act, it is even more true when we come to a reorganisation of local government that creates new principal councils and different levels of operation, where the quality of services to children may be undermined. I am afraid that my concern on this issue has not been reduced by what the Minister has said.

In view of the support that has been indicated for the amendment, I intend in the appropriate place to move Amendment No.57 that deals with the children and young persons' commissioner. That will guarantee the monitoring of the services failing the view so far taken by the Welsh Office. On the basis of that statement, I beg leave to withdraw the other amendments in this group.

Amendment, by leave, withdrawn.

The Deputy Speaker (The Earl of Listowel)

My Lords, before I call the next amendment I should inform the House that if it is agreed to I cannot call Amendment No.53.

Clause 26 [Decentralisation schemes: preparation]:

Lord Rodger of Earlsferry moved Amendment No.52: Page 20, line 4, leave out subsection (1) and insert: ("(1) If the conditions mentioned in subsection (1A) are satisfied, the Secretary of State may give a direction to a new principal council requiring them to prepare and submit to him a decentralisation scheme for such area falling within the area of the council as the Secretary of State sees fit to specify in the direction. (1A) The conditions are that—

  1. (a) an application relating to the council has been made to the Secretary of State under this section by ten or more of their members;
  2. (b) the application is expressed to be made in relation to a specified area falling within the area of the council; and
  3. (c) at least ten of those persons making the application are members of the council who are connected with the area specified in the application.").

The noble and learned Lord said: My Lords, in moving Amendment No.52, I should like to speak also to Amendments Nos.53A to 55. These amendments are tabled in response to concerns expressed by noble Lords at Committee stage that the 10 members who request a decentralisation scheme should be members of the council representing electoral divisions which fall within the area for which the scheme is requested. Amendment No.52 confirms that the application should be made in respect of a specified area and that at least 10 of those making the application must be members of the council who are connected with the area specified in the application.

The term "connected with" is defined in the second of the two new subsections to be inserted by means of Amendment No.55. Members will be deemed to be eligible to be included among the 10 if they represent electoral divisions that fall wholly or partly within the specified area for which a decentralisation scheme is made.

The first of the two new subsections to be inserted by Amendment No.55 allows the Secretary of State a discretion in determining the exact area to be covered by a decentralisation scheme. This is put in so that, for example, the Secretary of State can comply with the duties imposed upon him by subsection (8) of Clause 26.

Amendment No.54 clarifies the process of applying for a decentralisation scheme. It may cover only a single physical area. No scheme may cover two or more areas. It is for that reason that the reference to "or areas" is deleted as being superfluous.

Amendment No.53A is purely consequential on Amendment No.52, which provides for an application for a decentralisation scheme to be made to the Secretary of State.

Lord Prys-Davies

My Lords, I should like to thank the noble and learned Lord for this series of amendments. Amendment No.52, in conjunction with the second paragraph of Amendment No.55 (which defines the meaning of the word "connected"), meets our concerns. These amendments are acceptable, and in those circumstances I shall not be moving Amendment No.53.

On Question, amendment agreed to.

[Amendment No.53 not moved.]

Lord Rodger of Earlsferry moved Amendments Nos.53A to 55: Page 20, line 22, leave out ("request") and insert ("application"). Page 20, line 25, leave out ("or areas"). Page 20, line 42, at end insert:

On Question, amendments agreed to.

Lord Prys-Davies moved Amendment No.56: Leave out Clause 26 and insert the following new clause:

("Decentralisation schemes: preparation 26. — (1) Every council shall have a duty to prepare a draft decentralisation scheme for their area in accordance with this section. (2) A draft decentralisation scheme shall contain a council's proposals for the administration of their functions within the whole area of the council and shall specify the date or dates by which such a draft scheme shall be implemented and, without prejudice to the generality of the foregoing, may include provision as to—

  1. (a) arrangements for the holding of meetings of the council (or any committee or sub-committee of the council) at particular places within the area of the council;
  2. (b) the establishment of committees for particular areas and the delegation to those committees (under section 101 of the 1972 Act) of specified functions of the council;
  3. (c) the composition of committees for particular areas and section 15 of the Local Government and Housing Act 1989 (political balance on committees) and sections 102(3) of the 1972 Act (power to include persons who are not members of the local authority concerned) shall not apply in relation to membership of the committee;
  4. (d) the location of offices of the council within the council's area, the staffing of such offices and the delegation to members of staff (under the said section 101) of specified functions;
  5. (e) the provisions of facilities at particular places within the area of the council where advice may be obtained on services provided by the council.
(3) Every council shall, before 1st April 1996, give public notice of the fact that they have prepared a draft decentralisation scheme and of the places within the area where copies of the draft scheme may be inspected, and any such notice shall invite the public, within a period of not less than eight weeks from the date of the notice, to make representations as regards the draft scheme. (4) Every council shall, during the period mentioned in subsection (3) above, consult the community councils within their area about the draft scheme. (5) After considering any representations made under subsection (3) or (4) above, the council may amend the draft scheme (whether to take account of those representations or otherwise) and shall adopt the scheme. (6) After the scheme has been adopted, the council shall
  1. (a) send a copy of the scheme in its adopted form to the Secretary of State; and
  2. (b) give public notice of the scheme.
 (7) Where a scheme has been adopted, it shall be the duty of the council concerned to implement the scheme by the date or dates specified in the scheme. (8) A council may amend a scheme adopted under this section or revoke and replace such a scheme but the amended scheme or, as the case may be, new scheme shall be adopted in accordance with the provisions of this section, subject to such modifications as are necessary. (9) The Secretary of State may, after consulting such associations of local authorities and such other persons as appear to him to be appropriate, issue guidance with respect to the form and content of decentralisation schemes. (10) A council shall take account of any guidance issued under subsection (9) above.").

The noble Lord said: My Lords, this amendment is a replacement for Clauses 26 and 27 of the Bill. I will develop my argument in support of the amendment in two stages. I will set out our criticisms of Clauses 26 and 27 and then proceed to advance the case for this amendment in particular.

It was interesting to note that decentralisation never featured in the White Paper which preceded the Bill. Clauses 26 and 27 were designed by the present Secretary of State last summer as a middle solution in an effort to retain Montgomeryshire in the County of Powys. But what has been designed as a political expediency for one part of Wales has been elevated in this Bill into a general principle of decentralisation which may be available throughout Wales.

Within local government circles in Wales there is widespread dissatisfaction with the decentralisation scheme under Clauses 26 and 27. It is authoritarian and its content depends on what the Secretary of State decides is appropriate having regard to the need for efficiency and the geographical, historical, cultural and demographic circumstances of the local area. There can be immense arguments about the meaning of that criterion. But it means that the Secretary of State can exercise his power to reject or modify a scheme on almost any ground which appeals to him. That decision is not capable of being appealed. He is therefore in a position to prescribe the scheme. That point, which was well made by my noble friend Lord Williams of Elvel in Committee, was, I believe, taken by the noble and learned Lord the Lord Advocate. The discussion is to be found in column 732 of the Official Report for 20th January 1994.

As I understand the Bill, on the basis that the Secretary of State requires the scheme to be amended, the council is left with no discretion, except that at the end of the day, if the elected members are not prepared to serve on the area committee, the scheme cannot be implemented. I should he grateful if the noble and learned Lord would consider that point and confirm that it is a correct interpretation of Clause 27(8) (b). I mention that because the Bill does not place a duty on any member of the council to serve on the area committee, so that is the ultimate weapon which local people can exercise in their dispute with the Secretary of State.

However, the authoritarian nature of the scheme is not the only source of criticism. There is a strongly held conviction, which is reflected in particular in the conclusions of the officers of the Council of Welsh Districts, that the Powys scheme will prove unworkable. Is there anywhere in Christendom a precedent for this scheme?

The draft decentralisation guidance issued by the Welsh Office has been studied carefully. There is a strong feeling that the division of functions between the council and the area committee, will lead to a confused and inefficient separation of services between the two tiers". The officers have referred us to the division in the housing field, where the area committee may have responsibility for allocating the council tenancies and handling the renovation grants but it will have no control over the all important housing revenue account or the housing strategy.

Should the responsibility for housing be divided along those lines? Indeed, should it be divided at all? The division will almost inevitably mean that one tier will be able to blame the other for its own shortcomings. The citizen will be left in a weak position in trying to hold the council or the area committee to account. It is also well worth noting that the existence of this division will in due course lead to a demand to bring these functions together in a single authority. Therefore, this is at best a short-term political solution.

The officers of the Council of the Welsh Districts also foresee that the council may end up being accountable to the courts, to the auditors and even to the ombudsman for a function which has been delegated to the area, while it has no means of ensuring that the recommended action is implemented. Perhaps the noble and learned Lord will address that issue too. For those reasons, we say that the Clause 26 scheme is not acceptable.

Amendment No.56 starts with a recognition of the need for decentralisation. In Committee the noble and learned Lord the Lord Advocate stated: It is thought that a decentralisation scheme for Anglesey, for instance, is unlikely to make sense". — [Official Report, 20/1/94; col.734.] The Anglesey Borough Council already operates a decentralisation scheme. What this amendment requires is a commitment to the principle of decentralisation. It will require all councils to introduce a decentralisation scheme, which should of course take account of the Secretary of State's guidance but would not require his approval. So Amendment No.56 allows genuine discretion to the councils within the broad parameters of the clause to produce their own scheme to reflect the conditions in the areas that they serve.

It will also be noted that it requires the council to publish its draft scheme and to consult with the community councils for the area so that the scheme will be responsive to the wishes of the people of the area. Furthermore, the need for local consultation is a requirement which is glaringly omitted from Clauses 26 and 27.

I acknowledge that Amendment No.56 is taken largely from the Local Government (Scotland) Bill. I do not claim that Welsh legislation should always be by reference to Scottish legislation but we believe that on this issue the Scottish approach is a vast improvement on Clauses 26 and 27. I beg to move.

4.45 p.m.

Lord Cledwyn of Penrhos

My Lords, I support the amendment and the knowledgeable speech of my noble friend Lord Prys-Davies. I too have always believed that there should be a commitment to the principle of decentralisation. However, it should be left to each council to produce a decentralisation scheme which would reflect the conditions in its own area. The route that we are considering is not democratic.

Like my noble friend, I am anxious about the way in which the Bill seeks to apply the principle of decentralisation in Clauses 26 and 27, if that is the underlying philosophy of the two clauses. Unlike the Bill as it stands, the amendment recognises that all councils will be expected to decentralise their management but to do so in a way that best suits the needs of their areas and the weight of local opinion. That is a matter of the first importance. The amendment requires the council to consult with the community councils for its area. Under the Bill, a council cannot devolve management to an area committee except on the basis that its scheme is approved by the Secretary of State. That implies that there is only one way to decentralise functions: it must fit the Secretary of State's thinking of what is appropriate. That idea is far removed from the spirit of decentralisation.

I accept that a council in drawing up its decentralisation scheme should pay regard to guidance issued by the Secretary of State. However, the guidance should not be prescriptive, as it could be under the Bill. In Clauses 26 and 27 we have another example of the excessive power of the Secretary of State for Wales to interfere on points of detail. We are advised by experienced local government officials in Wales that the scheme envisaged by the clauses creates opportunities for continuous internal conflict, instability and confused accountability, as was mentioned in our discussions in Committee. Those are matters that we wish to avoid at all costs. Knowing the noble and learned Lord the Lord Advocate as I do, I am sure that he shares that view.

I believe that Amendment No.56 gets the balance about right; that is, the balance between giving proper weight to the requirements of decentralisation to meet local conditions while avoiding the re-emergence of the two-tier structure and confused accountability.

As the Bill is piloted by the noble and learned Lord the Lord Advocate for Scotland, my most powerful argument is that the amendment reflects the Scottish approach set out in the Scottish local government Bill: if its provisions are good for Scotland, why should they not be good for Wales too? That is an unanswerable argument and I am sure that the noble and learned Lord must agree with me, being the prudent and able man that he is.

Lord Hooson

My Lords, this amendment is almost identical to the amendment which I tabled in Committee to explore the differences between the Scottish approach and the approach taken in this Bill. The noble and learned Lord the Lord Advocate told us something of the genesis of the two schemes in Committee. He was kind and courteous enough to send me a letter, which I have made sure was circulated. That confirmed what he said and dealt in greater depth with the genesis of the two schemes.

The noble and learned Lord told us— and I accept it — that the pressure for the Scottish decentralisation scheme came from the community councils in Scotland. They pressed for decentralisation measures. Nevertheless, the noble Lord, Lord Prys-Davies, is right to say that the genesis of the Welsh scheme arose from the problem of Powys. When it was announced, to the horror of almost everyone in Powys, that it was to become a unitary authority, in order to try to gain support and assuage fears, the county council suggested that there could be a federal scheme for Powys, whatever was meant by that, with powers devolved to the three separate parts; that is, Montgomery, Brecon and Radnor.

That was seized upon by the then Secretary of State, Mr. David Hunt, who put forward a version of the decentralised scheme that he had in mind. When he was replaced by the present Secretary of State, Mr. Redwood, Mr. Redwood finessed the present proposal, but it was still in embryonic form. It is absolutely right that he promised delegates from my area that the committees would have much greater powers than he and the officials were eventually prepared to concede. Therefore, it was a much more hand-to-mouth scheme than anything that appeared in the Scottish Bill.

It seems to me that that is of vital importance. If the Government are stupid enough to carry on with the scheme and to create a unitary authority as huge as Powys, the only way in which that can possibly be made acceptable and tolerable to the people is by a fair scheme of decentralisation.

One is driven to ask where the money lies if there is to be devolution in a very large area like Powys. Power is where the money lies. No committee structure will be effective without a high degree of financial control over resources. It will need its own budget. Does the Secretary of State contemplate that? He told a delegation from my defence committee that he did. He retracted that subsequently in a meeting with the representatives of the district councils.

But as I see it, under the Scottish scheme, if I may refer to the amendment as such, subject to eventual approval and the following of certain guidelines, there would be the possibility of maximum devolution. Montgomery, Brecon and Radnor would want that.

If the Government's scheme means no more than decentralised service delivery, we have that at present, as the noble Lord indicated, in Anglesey and Montgomery. There is decentralised service delivery from the county and district councils. Therefore, there is already decentralisation at two levels in Powys. As was pointed out in what was circulated by the Council of Welsh Districts, that happens also in Wrexham and Cardiff.

Under the present scheme there is a real danger of confused service delivery. The noble Lord, Lord Prys-Davies, is right to point out the danger in relation to housing. The guidance indicates that management will be at two levels and will be a two-tier organisation, whereas at present there is only one housing authority under the three district councils. For example, if 95 per cent. of housing management must, in accord with government guidelines, be subjected to competitive tendering, in many areas there will be a housing direct service organisation, a housing contractor or an area committee and an authority-wide housing committee. At present there is only one authority and the responsibility is clear.

The noble and learned Lord the Lord Advocate has been performing a Trojan's role in respect of this highly unsatisfactory Bill. Our sympathy goes out to him because we suspect that his sympathies cannot be with this adequate Bill. Will he ask the Government why they do not apply the principle of subsidiarity, of which we heard so much from the Prime Minister at the time of Maastricht? The definition of subsidiarity given then was that powers must be retained at the lowest feasible level. If that is to apply to Europe and the states contained within it, it should apply also at local government level.

I am informed that the closer social services are to the grass-roots, the better. I am told that at present in Powys,95 per cent. of social services can be and are run by a decentralisation scheme. The only services which cannot be provided at that level are services dealing with adoption, fostering and training and, of course, there must always be a separate monitoring service.

It seems to me. hat the present provisions of Clauses 26 and 27 have been put forward because there was such an outcry in Powys at the idea of a Powys unitary authority. It was thought that some kind of sop should be given: something to try to make acceptable what was manifestly unacceptable. That is why Clauses 26 and 27 were introduced.

The Government must consider the possibility of buck-passing between, for example, the centre and area committees; and the confusion which is possible over legal and administrative accountability. For example, the principal authority will remain accountable to the courts, the ombudsman and the auditors, but area committees will have derived their responsibilities from the Secretary of State. Where will the control lie? Where does accountability rest?

The scheme will tend to be rigid. What is right for Powys may be totally wrong for other parts of Wales. I see the noble Lord, Lord Elis-Thomas. It is extremely important that Meirioneth has as much control over its own affairs as possible. But it seems to me that there is a great danger of rigidity and an inherent conflict if decentralisation is to mean anything at all. How is that conflict to be resolved?

I hope that in another place the Government will look with extreme care at this matter and will look at the two provisions side by side to see which is more acceptable. My present view is that Amendment No.56 gives greater scope for real meaningful devolution and a far greater variation of devolution between different parts of Wales than is provided by the present powers. No doubt we shall heat what the Government have to say on that point.

I have the overall impression that this is a miserable, ill-thought out political response. Pressures were brought to bear on all sides because of the proposal to create a unitary authority, which is far too large. I suspect that the extremely able and efficient Mr. Barnish, the then chief executive officer for Powys, persuaded high officials in the Welsh Office to change the Secretary of State's mind about unitary authorities for Montgomery, Brecon and Radnor. We saw the change between 1991– 92 and then, in 1993, there was a complete change of front. We have had Mr. David Hunt and now we have Mr. Redwood wallowing about with schemes of area committees to make palatable and acceptable what is unacceptable.

I should like to make one point in response to the letter that the noble and learned Lord wrote to me. He stated that it was an attempt to meet the pressure from Brecon, Radnor, Merioneth and Montgomery for much greater control over their own affairs. However, I believe that the noble and learned Lord would find that Brecon, Radnor, Montgomery and certainly Merioneth — and I know that this is absolutely right—did not ask the Secretary of State for area committees they were asking to resort to the original plans so that we did not have remote, unwieldy and really unworkable unitary authorities. I believe that that was an attempt to provide us with a sop.

I have come to the conclusion that the amendment moved by the noble Lord, Lord Prys-Davies, is, in my present state of knowledge, preferable to the Government's clause. It seems to me to be the only possible way of achieving a real measure of devolution.

5 p.m.

Lord Rodger of Earlsferry

My Lords, the noble Lord, Lord Prys-Davies, began by saying that he thought the scheme in Clauses 26 and 27 was authoritarian. It does not appear to the Government to be so. As has been mentioned on a number of occasions both in Committee and in correspondence, the genesis of the scheme was a recognition by Secretaries of State that there was in Montgomeryshire, and in other parts of Wales, the kind of pressure for local representation which we heard so eloquently spoken to when discussing boundaries.

I do not pretend— indeed, I have never pretended — that the pressure was for the setting up of area committees. However, while rejecting the idea that those areas should have their own unitary authorities for other reasons, the Secretary of State said,"Well, having taken the decision that we will have to have a larger authority— be it Powys, or wherever— nonetheless, we recognise that such local pressures exist. Here is a scheme which may provide one way in which expression can be given to the kinds of desire for more local control than would otherwise be available without this particular structure".

I emphasised "one way", and did so advisedly. It is not the case that Clauses 26 and 27 are the only method by which a policy of decentralisation could be carried out. In the letter that I wrote to the noble Lord, Lord Hooson, I pointed out that, under the existing powers of Section 101 of the Local Government Act 1972, many of the things that are envisaged in the Scottish clause can already been done. In particular, it would be possible to delegate functions to committees having responsibilities for part of a local authority's area. There is therefore no question of a scheme under Clauses 26 and 27 being the only way in which it can be done. If a unitary authority, using its powers under Section 101, decided that it would like to have a committee dealing with one area of its local authority, that could be done.

The purpose of Clauses 26 and 27 is to take the matter just that bit further. There is absolutely no compulsion upon a local authority to go down that road. On the contrary, it is only if people from the area want such a scheme that the matter will arise. In such a case, the application would be put forward. Of course, it may apply only in connection with certain specified functions. It does not need to cover all the council's functions; indeed, only certain specified functions may be covered by the scheme. I see that the noble Lord, Lord Hooson, wishes to intervene. I give way.

Lord Hooson

My Lords, I am much obliged. People are concerned to know whether, under a scheme of devolution, the Secretary of State would approve of a plan that would give them real financial power.

Lord Rodger of Earlsferry

My Lords, there is no question of them having fund-raising powers. That is not in issue. I would envisage that the position under such a scheme— and, of course, it would depend on the type of scheme adopted— would be that some sort of block grant would be made available by the principal council to the area committee for the discharge of its functions. The important point to note is that only if people wished to have such a scheme would the matter arise. The Secretary of State would approve such a scheme only if he thought it appropriate, having regard to the various criteria set out in Clause 26(8).

Some play was made of the wide-ranging nature of such criteria. However, had those criteria not been so wide ranging, I have no doubt that play would have been made of the fact that the Secretary of State was not given discretion to take into account the geographical, historical, cultural and demographic circumstances. I should have thought that all those considerations were very much the kind of things which one would expect a Secretary of State to take into account when deciding whether or not the scheme before him is one that should be approved for the area.

It has been said that the scheme would be rigid. Indeed, the noble Lord, Lord Hooson, thinks so, especially in connection with Powys. There is no reason why what would be put in position for Powys should be replicated elsewhere. For example, if the people of Merionethshire were to come forward and request an area committee, there is no reason why the scheme laid down for that area should be the same as that requested by Montgomeryshire. On the contrary, the clause provides that the scheme should be tailored to the particular circumstances.

It is correct to say that it is a novel proposal. However, it is not one that is forced upon people; it is one that people can adopt. It is perhaps thought to be rigid in one sense. However, that rigidity is possibly one of its attractions to an area like Montgomeryshire. If such a scheme is put into place and approved, the people there will have the confidence that the position will be maintained whatever happens, unless there is an agreement that it should be abolished. That is as a safeguard for the people of Montgomery which they would not have if they merely used the powers under Section 101; nor would they have any such safeguards if the clause envisaged in the Scottish Bill was put into place.

It is because the provision here gives this extra security that it had been thought that it would be attractive to people in these areas. Of course, if they do not wish to have that security, and if they merely wish to have area committees which do not have the kind of lock and other measures of security which are established by these provisions, they do not need to use this measure. They can use the existing powers under Section 101 and persuade the council to set up area committees.

In all these respects the Government believe that the provision I am discussing offers an option which may well be attractive to certain areas. Of course it is recognised that in the nature of things there will be a measure of splitting of functions. I had naively thought that one of the advantages of this whole scheme would be that whereas, for example, the wider strategic planning aspects would be dealt with by Powys, the enforcement of planning policy might be carried out by Montgomeryshire, the people of Breconshire, and so on. I should have thought that would be desirable.

I should have thought that the matter of certain aspects of housing policy being discharged by people who are familiar with the conditions in the area concerned was one of the advantages of the policy. Of course I recognise that there may be an element of conflict between the two authorities— we shall perhaps discuss that later— but at the end of the day these are matters which will be resolved at the ballot box. If people in a local area do not prove to be carrying out the will of the people who elect them, no doubt they will be removed in due course at the ballot box. We believe that that is the correct way forward.

Of course one can envisage circumstances— I believe these are rather remote— where people might not choose to take up the seats on the scheme which has been devised for them. However, I believe that is rather unlikely given that the initial movement for such a scheme comes from the people in the area concerned. It is true to say, of course, that there may be certain aspects which would not be carried out by a particular committee if, for example, it fell down on that. At the end of the day the council would carry the responsibility for that, but that is no different in one sense from the position where any function is devolved to a committee of the council. At the end of the day one is dealing with a committee of the council and, ultimately, the council bears responsibility for the discharge of the functions. It could not be otherwise.

We do not believe that those matters will prove to be stumbling blocks at the end of the day. We believe that this scheme will work. However, I must stress to your Lordships that we are not imposing this scheme on anyone. We have suggested it as an option. There are powers to do most of the things in the Scottish scheme if people wish to do them. The provision I am discussing gives an extra power for people to obtain a new structure with the advantages which I have stressed. It is not forced on them and it is not authoritarian: it is something which they can choose to have. We believe that, judged against the background of the Welsh conditions, this would prove an attractive scheme to certain areas, and that they would wish to operate it.

Baroness White

My Lords, before the Minister sits down, I hope he can clear my mind on one point. It appears to me from the first line of Clause 26 that any 10 members of any council could stir up trouble if they wished to, and that this would make the whole proceeding even more difficult than it would otherwise appear.

5.15 p.m.

Lord Rodger of Earlsferry

My Lords, the provision has of course been amended and the application now has to come from 10 members who represent the area to which the scheme would apply. Of course they can come forward from whatever council throughout Wales and we accept they have a democratic right to do that. If 10 members come from an area which they believe is an appropriate area in this context, we believe that is a situation where it is appropriate for the Secretary of State to consider the scheme.

Baroness While

My Lords, surely that is an absolute recipe for chaos. Is it not better to accept the proposal in the amendment that, Every council shall have a duty to prepare a draft decentralisation scheme", and not leave it to the chance of 10 disgruntled members putting it forward?

Lord Rodger of Earlsferry

My Lords, the request under subsection (1) can only be made in terms of subsection (6). It is limited in time and we do not believe that it is a recipe for chaos; nor do we believe that it is appropriate to force local councils, which may have no intention of having a decentralisation scheme of this kind or another kind, to consider such proposals.

Lord Elis-Thomas

My Lords, before the noble and learned Lord sits down, as reference was made to Meirionnydd— this was a subject of a previous debate — do I understand him to say that a decentralisation scheme, were it envisaged for the Meirionnydd area, could be distinct and different from any other decentralisation scheme— for example the one in Montgomeryshire?

Lord Rodger of Earlsferry

My Lords, the noble Lord, Lord Elis-Thomas, will perceive that all one has here so to speak is a framework. It is simply a power to put forward the proposals. The scheme which the Secretary of State accepted for Merionethshire might be very different from another, because of the differences in population and cultural differences. One would presume it would be tailor-made since ultimately, it would have come from the council in the area. Therefore it would be designed to suit the particular conditions in Merionethshire rather than, for example, the wholly different conditions in Powys.

Lord Hooson

My Lords, I am sorry to trouble the noble and learned Lord but this is an important matter. I think the great problem is that this matter has to be approved by the Secretary of State. If a scheme were put forward after this Bill has become an Act, the Secretary of State could say,"No. I merely mean that the delivery of services can be devolved but nothing else". What will the Secretary of State approve? The noble and learned Lord has given us no indication of that. We are really asking people to buy a pig in a poke.

Lord Rodger of Earlsferry

My Lords, what the Secretary of State will have to consider is the submission of a decentralisation scheme by the council in terms of subsection (3) of Clause 26. It would be that which he would consider in the light of the criteria of which I have spoken.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord the Lord Advocate for his lengthy response to the amendment. I believe at the end of his speech he said that this was a scheme which was suitable for the Welsh background. However, as the noble Lord, Lord Hooson, said, it has nothing whatever to do with the Welsh background. It has everything to do with Montgomeryshire. The noble and learned Lord the Lord Advocate acknowledged that this was a novel scheme. As I understand it, it is untried anywhere and it has not been the subject of consultation with any of the local authorities in Wales. However, the noble and learned Lord went further and said that the scheme was novel and rigid. To hear that the scheme is novel and rigid in no way allays our anxieties. I believe the noble and learned Lord is shaking his head, but we shall have to see what is printed in Hansard The noble and learned Lord said the scheme was novel and rigid. I thought he was anticipating the discussion on Amendment No.58.

Our great difficulty with Clauses 26 and 27 is that the Secretary of State is personally committed to them— that is what we hear from our friends within local authority circles— and therefore he is not prepared to listen to representations. I see that we cannot possibly bring this amendment, or a variation of it, back to the House for discussion because the Secretary of State has made it perfectly clear that he will not listen to representations. It seems to me that in those circumstances, and given the widespread dissatisfaction within local government about Clauses 26 and 27. it is our duty to press this amendment to a Division.

5.19 p.m.

On Question, Whether the said amendment (No.56) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 125.

Division No.1
CONTENTS
Acton, L. Clinton-Davis, L.
Addington, L. Cocks of Hartcliffe, L.
Archer of Sandwell, L. David, B.
Ardwick, L. Dean of Beswick, L.
Ashley of Stoke, L. Dean of Thorntone Fylde, B
Brain, L. Donoughue, L.
Brookes, L. Dormand of Easington, L.
Bruce of Donington, L. Dunrossil, V.
Carmichael of Kelvingrove, L. Elis-Thomas, L.
Carter, L. Ennals, L.
Cledwyn of Penrhos, L. Faithfull, B.
Falkland, V. Lovell-Davis, L.
Fisher of Rednal, B. Mason of Bamsley, L.
Gallacher, L. Mclntosh of Haringey, L.
Gladwyn, L. Mertyn-Rees, L.
Glenamara, L. Milner of Leeds, L.
Gould of Pottemewton, B. MoUoy, L.
Graham of Edmonton, L. Morris of Castle Morris, L.
[Teller. j Mulley, L.
Grey, E. Nelson, E.
Halsbury, E. Nicol, B.
Hampton, L. Peston, L.
Hanworth, V. Pitt of Hampstead, L.
Haskel, L. Ponsonby of Shulbrede, L.
Hayter, L. Prys-Davies, L.
Henderson of Brompton, L. Redesdale, L.
Hollis of Heigham, B. Richard, L.
Holme of Cheltenham, L. Robson of Kiddington, B.
Hooson, L. Sefton of Garston, L.
Howell, L. Shepherd, L.
Howie of Troon, L. Simon of Glaisdale, L.
Hylton-Foster, B. Stedman, B.
Jay of Paddington, B. [Teller.] Stoddart of Swindon, L.
Jeger, B. Taylor of Blackburn, L.
Jenkins of Hillhead, L. Tordoff, L.
Jenkins of Putney, L. Turner of Camden, B.
Judd, L. White, B.
Kilbracken, L. Williams of Elvel, L.
Kinloss, Ly. Williams of Mostyn, L.
Listowel, E. Winchilsea and Nottingham, E
Longford, E.
NOT-CONTENTS
Aberdare, L. Gridley, L.
Addison, V. Hailsham of Saint Marylebone, L.
Alexander of Tunis, E. Harmar-Nicholls, L.
Allenby of Megiddo, V. Harrowby, E.
Annaly, L. Hayhoe, L.
Arran, E. Henley, L.
Astor, V. HolmPatrick, L.
Beloff, L. Hood, V.
Blatch, B. Hooper, B.
Blyth, L. Howe, E.
Boardman, L. Jenkin of Roding, L.
Borthwick, L. Johnston of Rockport, L.
Boyd-Carpenter, L. Kenyon, L.
Brabazon of Tara, L. Kinnoull, E.
Braine of Wheatley, L. Lane of Horsell, L.
Brougham and Vaux, L. Lauderdale, E.
Bruntisfield, L. Lawson of Blaby, L.
Burnham, L. Leigh, L.
Butterworth, L. Lindsey and Abingdon, E.
Cadman, L. Lloyd-George of Dwyfor, E.
Campbell of Alloway, L. Long, V.
Campbell of Croy, L. Lucas, L.
Carnegy of Lour, B. Lyell, L.
Camock, L. Mackay of Ardbrecknish, L.
Chalker of Wallasey, B. Mackay of Clashfem, L. (Lord
Chelmsford, V. Chancellor.]
Clanwilliam, E. Mancroft, L.
Clark of Kempston, L. Manton, L.
Colwyn, L. Marlesford, L.
Courtown, E. McColl of Dulwich, L.
Cox, B. Mersey, V.
Craigavon, V. Miller of Hendon, B.
Cumberlege, B. Milverton, L.
Davidson, V. Montgomery of Alamein, V.
Dean of Harptree, L. Moran, L.
Denham, L. Morris, L.
Derwent, L. Mottistone, L.
Dixon-Smith, L. Mountevans, L.
Dundonald, E. Munster, E.
Ellenborough, L. Murton of Lindisfarne, L.
Elliott of Morpeth, L. Newall, L.
Elphinstone, L. Norrie, L.
Elton, L. Orkney, E.
Rather, B. Orr-Ewing, L.
Fraser of Carmyllie, L. Oxfuird, V.
Gilmour of Craigmillar, L. Park of Monmouth, B.
Goschen, V. Pender, L.
Gray of Contin, L. Peyton of Yeovil, L.
Rankeillour, L. Sudeley, L.
Rennell, L. Swansea, L.
Renton, L. Swinfen, L.
Rippon of Hexham, L. Tebbit, L.
Rodger of Earlsferry, L. Teviot, L.
Romney, E. Thomas of Gwydir, L.
Saltoun of Abemethy, Ly. Trefgarne, L.
Seccombe, B. Trumpington, B.
Shrewsbury, E. Ullswater, V. [Teller.]
Skelmersdale, L. Vaux of Harrowden, L.
St. Davids, V. Vivian, L.
Stewartby, L. Wakeham, L. [Lord Privy Seal.]
Stockton, E. Westbury, L.
Strange, B. Wharton, B.
Strathmore and Kinghorne, E. [Teller.] Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.27p.m.

Lord Elis-Thomas moved Amendment No.57: After Clause 26, insert the following new clause:

("Children's Commissioner for Wales — (1) There shall be a Children and Young Persons Commissioner for Wales ("the Commissioner") to monitor the effectiveness of all services for children and young persons provided by principal councils, to investigate specific complaints about these services and to report annually to Parliament. (2) In exercising his functions under this section, the Commissioner shall—

  1. (a) seek to ensure that the rights and interests of children and young persons are at all times properly taken into account by principal councils when decisions are taken on policies affecting children; and
  2. (b) have regard to—
    1. (i) the principles laid down in the United Nations Convention on the Rights of the Child,
    2. (ii) the need to ensure co-ordination between voluntary organisations providing services for children and principal councils, and
    3. (iii) the need to consult from time to time with children and those who seek to promote the interests of children.
(3) The Commissioner shall be appointed by Her Majesty on the recommendation of the Secretary of State for a period of five years during which time he may only be relieved at his own request or removed by Her Majesty for just cause or excuse; and the Commissioner shall be eligible for reappointment at the end of that period.").

The noble Lords said: My Lords, I beg to move Amendment No.57.

5.28 p.m.

On Question, Whether the said amendment (No.57) shall be agreed to?

Their Lordships divided: Contents,80; Not-Contents,118.

Division No.2
CONTENTS
Acton, L. Dunrossil, V.
Addington, L. Elis-Thomas, L. [Teller.]
Archer of Sand well, L. Ennals, L.
Ashley of Stoke, L. Faithfull, B.
Brain, L. Falkland, V.
Brookes, L. Gallacher, L.
Bruce of Donington, L. Gladwyn, L.
Carmichael of Kelvingrove, L. Glenamara, L.
Carter, L. Gould of Potternewton, B
Cledwyn of Penrhos, L. Graham of Edmonton, L.
Clinton-Davis, L. [Teller.]
Cocks of Hartcliffe, L. Greenway, L.
David, B. Gregson, L.
Dean of Beswick, L. Grey, E.
Dean of Thoraton-le-Fylde, B. Halsbury, E.
Donoughue, L. Hampton, L.
Dormand of Easington, L. Hanworth, V.
Haskel, L. Moran, L.
Hayter, L. Morris of Castle Morris, L.
Henderson of Brompton, L. Mulley, L.
Hollis of Heigham, B. Nicol, B.
Holme of Cheltenham, L. Peston, L.
Hooson, L. Pitt of Hampstead, L.
Howell, L. Ponsonby of Shulbrede, L.
Howie of Troon, L. Prys-Davies, L.
Hylton-Foster, B. Redesdale, L.
Jay of Paddington, B. Richard, L.
Jeger. B. Robson of Kiddington, B.
Jenkins of Hillhead, L. Saltoun of Abernethy, Ly.
Jenkins of Putney, L. Sefton of Garston, L.
Judd, L. Shepherd, L.
Kennet, L. Stedman, B.
Kilbracken, L. Stoddart of Swindon, L.
Kinloss, Ly. Taylor of Blackburn, L.
Listowel, E. Tordoff, L.
Longford, E. Turner of Camden, B.
Lovell-Davis, L. White, B.
Mclntosh of Haringey, L. Williams of Elvel, L.
Merlyn-Rees, L. Winchilsea and Nottingham, E
Milner of Leeds, L. Wise, L.
Molloy, L.
NOT-CONTENTS
Addison, V. Hood, V.
Alexander of Tunis, E. Hooper, B.
Allenby of Megiddo, V. Howe, E.
Annaly, L. Jenkin of Roding, L.
Anan, E. Johnston of Rockport, L.
Ashbourne, L. Kenyon, L.
Astor, V. Kinnoull, E.
Beloff, L. Lane of Horsell, L.
Bethell, L. Lauderdale, E.
Blatch, B. Lawson of Blaby, L.
Blyth, L. Leigh, L.
Boardman, L. Lindsey and Abingdon, E.
Borthwick, L. Long, V.
Boyd-Carpenter, L. Lucas, L.
Brabazon of Tara, L. Lyell, L.
Braine of Wheatley, L. Mackay of Ardbrecknish, L.
Brougham and Vaux, L. Mackay of Clashfern, L. [Lord
Bruntisfield, L. Chancellor.]
Burnham, L. Mancroft, L.
Butterworth, L. Manton, L.
Cadman, L. Marlesford, L.
Campbell of Alloway, L McColl of Dulwich, L.
Campbell of Croy, L. Mersey, V.
Carnock, L. Miller of Hendon, B.
Chalker of Wallasey, B. Milverton, L.
Clariwilliam, E. Montgomery of Alamein, V.
Clark of Kempston, L. Morris, L.
Colwyn, L. Mottistone, L.
Courtown, E. Mountevans, L.
Cox, B. Munster, E.
Craigavon, V. Murton of Lindisfame, L.
Cranborne, V. Newall, L.
Cumberlege, B. Norrie, L.
Davidson, V. Orkney, E.
Dean of Harptree, L. Orr-Ewing, L.
Denham, L. Oxfuird, V.
Derwent, L. Park of Monmouth, B.
Dixon-Smith, L. Pender, L.
Eccles, V. Peyton of Yeovil, L.
Ellenborough, L. Rankeillour, L.
Elliott of Morpeth, L. Rennell, L.
Elphinstone, L. Renton, L.
Elton, L. Rippon of Hexham, L.
Flather, B. Rodger of Earlsferry, L.
Fraser of Carmyllie, L. Romney, E.
Goschen, V. Seccombe, B.
Gray of Contin, L. Shrewsbury, E.
Gridley, L. Skelmersdale, L.
Hailsham of Saint Marylcbone, L. St. Davids, V.
Harmar-Nicholls, L. Stewartby, L.
Harrowby, E. Stockton, E.
Hayhos, L. Strange, B.
Henley, L. Scrathmore and Kinghome, E.
HolrnPatrick, L. [Teller.]
Sudeley, L. Trumpington, B.
Swansea, L. Ullswater, V. [Teller.]
Swinfen, L. Vaux of Harrowden, L.
Tebbit, L. Vivian, L.
Thomas of Gwydir, L. Wakeham, L. [Lord Privy Seal]
Trefgarne, L. Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.35 p.m.

Clause 27 [Decentralisation schemes: approval, implementation and safeguards]:

Lord Prys-Davies moved Amendment No.58: Page 21, line 37, at end insert ("or in the absence of such agreement with the consent of the Secretary of State").

The noble Lord said: My Lords, the Secretary of State believes that the overriding merit of the decentralisation scheme is that once it is in place it cannot be changed without the consent of the area committee. If that is a merit, in our submission it is far outweighed by its weakness. If the scheme proves to be unworkable, the damage cannot be undone without the consent of the area committee. Therefore the Bill does not address a situation in which the council and the area committee are immovably deadlocked.

Amendment No.58 provides a solution. We have stated on a number of occasions in Committee that we do not wish to add to the Secretary of State's powers. However, in that situation, and in particular since services to people can be damaged as a result of the impasse, we believe that it is proper to give the Secretary of State the power to resolve the dispute.

My noble friend Lord Morris of Castle Morris offered such a solution at Committee stage. The noble and learned Lord the Lord Advocate said that it would be invidious for the Secretary of State to act as an arbiter or umpire between, say, the Mid Wales Council or Radnorshire Area Committee. With respect, that argument has no force. The Secretary of State is the author of the scheme. It may well be a distorted scheme from the outset. It is ever right that he should carry the responsibility of sorting out the impasse when it arises. I beg to move.

Lord Rodger of Earlsferry

My Lords, as I stated in Committee, the Government do not believe that it would be appropriate to introduce a power for the Secretary of State to intervene in the circumstances envisaged. We shall be dealing with committees which have been set up under such a scheme; they are committees of the local authority. We do not believe that the deadlock to which the noble Lord refers is likely to arise. There will be the stability which is built into the Bill, and at the end of the day the test should rest ultimately on the decision of the electors of the area or of the unitary authority.

It is that power which ultimately provides the sanction for what would in essence be a political dispute of a local nature. I dare say that one can envisage various ways in which people could put the issue to the test. However, we believe that it is appropriate that it should be dealt with locally by electoral control.

For that reason we do not believe that it would be sensible for the Secretary of State to become involved. Nonetheless, I am happy to draw the attention of my right honourable friend the Secretary of State to the fact that noble Lords opposite believe that his powers should be increased in this fashion. I do not hold out any hope that he will change his mind. I believe that the theory underlying the present policy is consistent with the scheme in the Bill. On the other hand, I am happy to draw the views of noble Lords to his attention.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord the Lord Advocate for his reply, but the scheme is novel and a deadlock is therefore foreseeable. In those circumstances, for the Welsh Office to rely on the elections which may come in a few years' time borders on irresponsibility. It seems to us that a commitment to doing nothing in such a situation, although it may be acceptable to Welsh Office Ministers, borders on the irresponsible.

I am, nevertheless, grateful to the noble and learned Lord the Lord Advocate for a grain of sympathy for my position. I am sure that we are right to draw attention to the need for a solution. There may be a better way of dealing with the difficulty, but I have a feeling that this is an issue to which others in another place may well return. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Provision of information to Secretary of State]:

The Deputy Speaker (Lord Brougham and Vaux)

My Lords, I have to inform the House that if Amendment No.59 is agreed to, I cannot call Amendments Nos.60 or 60A.

5.45 p.m.

Lord Williams of Elvel moved Amendment No.59: Page 22, line 6, leave out subsection (I) and insert: ("(1) The Secretary of State may, with a view to exercising the powers contained in section 29, at any time before 31st March 1999 direct any new principal council to give him details of the arrangements which they have made, or propose to make, for the performance of specified functions.").

The noble Lord said: My Lords, I wish to move Amendment No.59 in the names of myself and my noble friend Lord Prys-Davies and it may be for the convenience of the House if I speak to Amendment No.60 and also Amendment No.61 in the name of the noble and learned Lord, Lord Simon of Glaisdale.

We discussed the provision of information to the Secretary of State when your Lordships were in Committee. The noble and learned Lord was kind enough to write to me after our exchange explaining why in the Government's view Clause 28 of the Bill should stand. With the greatest respect to him, his letter started with something of a trumpet tone stating that the clause was necessary. The trumpet began to give an uncertain sound as the letter went on. As I see it, the main thrust of the noble and learned Lord's argument was that the clause is in the Bill because there are strong presentational reasons for its inclusion. I accept that there may well be presentational reasons, but that does not seem to me enough entirely to justify a clause being in a piece of legislation.

Our amendment seeks to achieve a similar effect to our amendment in Committee. We are worried about several matters. First, we are worried that the Secretary of State already has powers under Section 230 of the Local Government Act 1972 which would allow him to gain all the information relevant for his purposes. Secondly, we are worried that Clause 28 is drawn too widely. The Secretary of State can ask any new principal council to give all kinds of things which are not relevant to the Secretary of State acting under Clause 29 and, if necessary, Clause 30.

On the second point, Clause 28(1) (b) states: information of a specified kind or description as to the performance of specified functions of theirs". If the Secretary of State is now to be allowed to require any new principal council to give information as to the performance of specified functions of theirs, what is the meaning of the word "performance"? Does it mean: "Would it not be better if it were done some other way?" "How much money has been spent on that?"? All kinds of details of a seriously bureaucratic nature can be required of the principal council by the Secretary of State.

So Amendment No.59 seeks to limit the Secretary of State in two ways: first, by the words: with a view to exercising the powers contained in section 29". In other words, if our amendment is accepted, the Secretary of State may require only such information as he needs to exercise his powers under Clause 29, which we are to discuss.

Secondly, Amendment No.59 tries to limit the remit of the Secretary of State and the width of his remit in that it eliminates subsection (1) (b), to which I have just objected. In other words, the Secretary of State can ask only for details of the arrangements which the councils: have made, or propose to make, for the performance of specified functions". We believe that the version in Amendment No.59 is preferable, for the reasons I have given, to the Government's version in Clause 28.

Amendment No.60 is quite simply a fallback position. If the Government do not like Amendment No.59, we would somewhat reluctantly accept that Amendment No.60 might be accepted by the Government, given that the primary purpose of both our amendments is to limit the Secretary of State to requesting information directly for the purposes of his powers under Clause 29.

I shall leave it to the noble and learned Lord, Lord Simon of Glaisdale, to explain his views on his amendment, but it seems to me that the proposal is well put. Subsection (3) appears to me to be otiose in the sense that it is quite clear that nothing in the new section affects anything else. I cannot quite understand in the first place why it is there. However, if it is to be there, no doubt the Government can explain and the noble and learned Lord, Lord Simon, will explain what he has in mind.

I revert to Amendment No.59 and hope very much that the Government will take those arguments seriously. As the noble and learned Lord, Lord Simon, quite rightly pointed out in Committee, information is power. The Secretary of State in Wales, as my noble friend Lord Cledwyn said on an earlier amendment, has an enormous amount of power in a multifunctional department. We are anxious to make sure that he has that power only if it is vitally necessary to make sure that the legislation is properly conducted. I beg to move.

Lord Simon of Glaisdale

My Lords, I do not know whether anyone else will speak from the Opposition Front Bench or whether my noble friend wishes to go ahead of me. If not, perhaps I may speak to Amendment No.61 in my name. I referred to the point in speaking to an amendment moved by the noble Lord, Lord Williams, in Committee with which I ventured to agree, as I do with what he said today.

However, this is a slightly different point. The amendment seeks to remove a provision which is in any event completely unnecessary. The amendment is an anti-inflationary provision. Among other things, its acceptance is a test of how serious the Government are in their desire to bear down on inflation. The background is the undoubted inflation of the statute book. When the Renton Committee on the preparation of legislation reported in 1975, it drew attention to the unnecessary and undesirable prolixity of the statutes. The statute book then ran to three volumes.

Ten years later, notwithstanding what the Renton Committee had said, it ran to five volumes. Not only that, but those five volumes contained fewer statutes — fewer public and general Acts, in other words— than the three volumes of 1975. In order to pack in more legislation still, the format of the statute book was increased. That was of course extremely inconvenient to those who had had book-cases made to fit the smaller format. But that was neither here nor there when it came to government convenience.

By increasing the format the statute book was reduced once again from five volumes to three. Nevertheless, in the latest set of statutes (1992) it has gone up again to five of the large format. The cost of them is £ 345. Every government department has to have a set. I think a set is at the knees of the noble and learned Lord the Lord Advocate. There are a great many other sets scattered round this Palace, and indeed elsewhere. Every lawyer has to have a set of statutes. It is not only the Stationery Office public and general Acts; it is also the Statutes in Force which are similarly inflated. Therefore the question arises as to whether the Government are serious about reducing inflation. Are they serious about removing from the statute book any unnecessary provision?

What this clause does, as the noble Lord, Lord Williams, has explained, is to provide that information should be supplied to the Secretary of State. In regard to subsection (3) perhaps I had better read what the Notes on Clauses say that it does. It is there that one looks for the purpose. I invite noble Lords to compare what I shall read with what appears in the clause. The Notes on Clauses say: Subsection (3) provides that the operation of the powers in this Clause shall not affect the operation of any other requirement on a local authority to provide information to the Secretary of State or any other person". There is a blinding Damascene flash of illumination.

Failing to find anything in the Notes on Clauses, I fall back on what I suggested was the purpose of the subsection, with which I understood the noble and learned Lord the Lord Advocate to agree. In other words, it is to obviate, to forestall, an argument that the provision in this clause that information shall be provided to the Secretary of State impliedly repeals and obviates any provision anywhere else in the statute book that local authorities shall provide such information.

The noble and learned Lord is a highly regarded lawyer. I am therefore content to leave the question to him to be answered yes or no. Does he think that such an argument stands any reasonable chance of acceptance in any reasonable tribunal?

Lord Rodger of Earlsferry

My Lords, the thrust of the first of the amendments from the noble Lord, Lord Williams of Elvel, Amendment No.59, is in effect to delete paragraph (b) of subsection (1) of Clause 28, thereby removing the power there given to the Secretary of State to require specific information about the performance of specified functions of the council.

That power is one which is desirable as a power used within the framework of Clauses 28,29 and 30. It is one which allows the Secretary of State to specify the kind of information that he wishes to have and to limit it in relation to particular functions of the council. The noble Lord, Lord Williams, asked what kind of information it would be. It is general. It is information as to the performance by the council of its functions. In my respectful submission, that seems to be an appropriate power for the Secretary of State to have, especially given the general background against which this whole issue has been discussed, namely the fears which people have as to whether the councils will, especially in their early years, discharge their functions and perform them properly. In that area it seems desirable to have this particular power as specified.

Amendment No.59, which is also shadowed in Amendment No.60, aims to limit the power of the Secretary of State in Clause 28 specifically to the situation that it be, with a view to exercising the powers contained in section 29". I have accepted that Clause 28 comes in the package of clauses headed with the cross-heading "joint working", and that it is within that general area that these powers will be used. That is reflected in the fact that they are limited in time, as are the powers in the other clauses. For that reason, even putting it at its lowest, the insertion of those words is unnecessary. It is clear that it is within that general context that the matter arises.

There is also this point. The Secretary of State would not necessarily be envisaging using his powers under Section 29, as it would be. He would simply be obtaining information upon which he would then make a decision as to whether it would be appropriate to use his powers under Section 29. There can be no question at the Clause 28 stage of him having already made up his mind that he would use his powers under what would be Section 29. It would merely be a question of obtaining the information based upon which he would then decide whether the powers under Section 29 would then have to be used. For that reason the limitation there goes further than is desirable in this area, although I fully accept that it is against the background of the possibility of such powers being used that the matter arises.

I fear that I cannot add much to what I said in Committee to the noble and learned Lord, Lord Simon of Glaisdale. My position remains that subsection (3) has been put in to avoid the possibility of an argument of the kind which the noble and learned Lord has characterised as being one which he obviously thinks would have no reasonable chance of success. It is of course the case that if one appeared in front of the noble and learned Lord he would undoubtedly take that view. But not all judges are inevitably and in all circumstances as wise as the noble and learned Lord. Sometimes people are very persuasive with their arguments in favour of a particular view, as the noble and learned Lord also knows. For that reason it seems desirable to obviate the possibility of such an argument being advanced and carrying the day by putting in what is after all only a short subsection of this kind. It is, as the noble Lord—

Lord Simon of Glaisdale

My Lords, perhaps the noble and learned Lord will forgive me if I interrupt him. He has not answered the question yes or no that I specifically asked him. He indicated that I correctly framed the purpose of the subsection. I now ask him again: does he think that such an argument stands any reasonable chance of success before any reasonable tribunal?

6 p.m.

Lord Rodger of Earlsferry

My Lords, I have to reply in my own way and say that I do not believe that such an argument should succeed. But I also say that this subsection makes sure that the matter does not waste the time of any tribunal, whether reasonable or unreasonable. The provision is put in to avoid that kind of argument being advanced.

I accept that, as the noble and learned Lord said on another occasion, if one were to fill the statute book with provisions cutting off all unreasonable arguments, the statute book would suffer the kind of inflation of which he spoke. But I do not believe that this subsection falls into such a seriously inflationary category. It is precedented and for that very reason to leave it out always gives rise to the possibility of an argument. Therefore I believe that subsection (3) should remain in the clause.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for his response to the amendments. I am unconvinced by his response to the noble and learned Lord, Lord Simon of Glaisdale. I said when introducing my amendments and referring to his amendments that I believed that subsection (3) was wholly otiose. I still believe that it is wholly otiose. It adds nothing. In my view the noble and learned Lord, Lord Simon of Glaisdale, has made his case.

However, I return to Amendments Nos.59 and 60. I accept the noble and learned Lord's arguments about the inclusion of subsection (1) (b). He made a convincing case for having paragraph (b) in the Bill. The Secretary of State needs to know whether certain things have happened. But the noble and learned Lord and I seemed to be moving closer together on the definition of why the Secretary of State is asking for that information. Quite rightly, he criticised my amendment because it seems to presuppose a decision that the powers will be exercised. He understands my point about wishing to circumscribe the motives of the Secretary of State in asking for information.

Therefore, I put it to the noble and learned Lord that together we could support an amendment on Third Reading which would read— I do not intend to draft on my feet, as it were— something like "in deciding whether or not to exercise his powers under". An amendment along those lines might satisfy both of us. If the noble and learned Lord would agree to that, I should be happy to withdraw my amendment. Perhaps he might wish to comment.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord rightly said that there are precedents for subsection (3). So there are. It is not that subsection (3) is ever necessary; but that formula has got into a computer in Whitehall and pops up whenever this topic comes into the statute book.

I was not surprised that the noble and learned Lord could not quite bring himself to say that he thought that the argument had any reasonable chance of success before any reasonable tribunal. But he said that the argument might be advanced, however unreasonable, because that is the premise. The unreasonable argument might be advanced and therefore he must obviate it.

I venture to remind your Lordships of what the noble and learned Lord said finally when the matter was discussed in Committee. He agreed that if one tries to obviate and forestall every silly argument that might be put forward, however fanciful, the statute book would go on growing inexorably, as it has been growing in the way that I indicated to your Lordships earlier. Unfortunately, I am forced to the conclusion that the Government are not interested in countering inflation.

If this matter were to be decided by those who have heard that argument, I should take the matter to a Division. But I cannot close my mind to what happened on the last two Divisions. Therefore, I shall not press my amendment.

Lord Rodger of Earlsferry

My Lords, in respect of the amendments to which the noble Lord, Lord Williams, spoke again, although I do not think that I can go so far as to give him the undertaking which he sought, I can say that I am very happy to take the matter away and reflect further upon it. I do not think that there is all that much between us.

Lord Williams of Elvel

My Lords, I am most grateful to the noble and learned Lord. I am sure that with his great wisdom he will come to the conclusion that some wording should be put in the Bill which will receive the approbation of your Lordships. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.60 not moved.]

Lord Elis-Thomas moved Amendment No.60A: Page 22, line 11, at end insert: ("(c) information relating to their performance in implementing the policies set out in Cmnd 2426: Sustainable Development.").

The noble Lord said: My Lords, this amendment was tabled following publication of the UK Government's document, Sustainable Development, to which it refers. The purpose of the amendment is to draw attention to the importance of the integration of different levels of government in relation to environmental policy. I should declare an interest as a deputy chairman of Cynefin, which is a very small private sector environmental consultancy which does mainly public sector work. I am also on the advisory committee of Keep Wales Tidy, which is related to the Tidy Britain group.

On that basis and because of those concerns I have followed with interest the whole environmental debate, both internationally and within the EC. The EC fifth environmental programme on environmental action, Towards Sustainability, emphasises the importance of securing the integration of environmental considerations in all policy areas. That is a key to the pursuit of sustainable development.

Within that same document emphasis is laid on the question of shared responsibility and subsidiarity; in other words, international organisations, member states and local authorities as well as the economic sectors and social partners should have a role in delivering sustainable development. Local government already has a good record in that field. The targets include the adoption of Local Agenda 21 for local authorities by 1996. They include ensuring that environmental considerations are at the core of the delivery of services to all local authorities, and cover the local environment and its state, eco-management and auditing, the integration of transport and land use policies, the assessment of the transport strategies in each area, working with local businesses on sustainable develop-ment and so on.

All that activity has a local base to it. But it is also important to accept the need to share information on an all-Wales basis. That is the purpose of the amendment; namely, to ensure that there is a free flow of information between local authorities and the Welsh Office on all aspects of best practice in the field of sustainable development and environmental policy. It follows from my wish to see the development of a comprehensive sustainable economy and ecology within Wales. Since my arguments are so patently green, acceptable and morally worthy, I am certain that the Welsh Office will accept them. I beg to move.

Lord Williams of Elvel

My Lords, I support the noble Lord, Lord Elis-Thomas, in his amendment. Perhaps I too should declare an interest as president for the Campaign for Protection of Rural Wales.

The whole matter of sustainable development will be debated by your Lordships on Wednesday. Nevertheless, a serious point arises relating particularly to Wales, which the noble Lord brought out in introducing the amendment. It is vitally important that there should be a proper co-ordination of all the efforts for sustainable development in Wales, and a lot of effort will have to be made if we are to meet our national commitments. However, that can only be done with proper co-ordination between the Welsh Office and the new principal councils. It seems to me therefore that we should either have something in the Bill or be given a clear assurance by the noble and learned Lord that those matters will be taken into account.

Lord Rodger of Earlsferry

My Lords, I accept that the purpose of Amendment No.60A is to raise the issue; but the specific place in which it arises would not on any view be appropriate. As we saw, it is to do with reserve powers in connection with the joint working arrangements, and so forth.

The Government are committed to the policies and objectives of Agenda 21 and, as your Lordships are aware, in previous years have published White Papers which dealt with the progress made in those matters. It is also the case that while local authorities are already, under their present existence, taking a range of actions in support of the objectives under Agenda 21, for the most part they are matters which are not statutory requirements. However, they are matters which they have taken forward.

The way in which that has been done is for those matters to be discussed at various meetings between representatives of government and of local authorities, and indeed with others because it involves not only local authorities but also businesses and other individuals. It is therefore the kind of topic which must be discussed in the wider area. When the new local authorities come into existence then the same kind of approach will be appropriate and will be carried forward. Just as the existing local authorities recognise their responsibilities in that area, I expect the new authorities to do likewise. While I cannot accept Amendment No.60A, I accept that it will be important for the new authorities to take account of those policies.

Lord Elis-Thomas

My Lords, in view of the acceptance of the principle of the amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No.61 not moved.]

Clause 29 [Joint working arrangements]:

Lord Williams of Elvel moved Amendment No.62: Page 22, line 17, after ("State") insert ("on the basis of information provided as a result of a direction given under section 28").

The noble Lord said: My Lords, Amendment No.62 stands in my name and that of my noble friend Lord Morris of Castle Morris. We come to Clause 29, and to a certain extent the amendment is the reverse side of the coin of the amendment that I tabled to Clause 28. Its purpose is to make sure that the Secretary of State—if I may use this phrase, and I hope he will not take offence — does not take any frivolous decisions; that is, decisions which have no basis in serious information that he gained as a result of his investigations under Clause 28.

The Bill as drafted does not limit the Secretary of State to any specific reason why he should give a direction. He may decide purely on the basis of anecdotal evidence, the evidence of one person or no people or, indeed, just walking around the fields. It seems to me that the Secretary of State needs a proper basis on which to decide that a function should be discharged and to give a direction to that effect.

Again, we want to follow the logic of the noble and learned Lord in Clauses 28,29 and 30. I believe that the amendment follows that logic. Information is gained by Clause 28. If that information proves that there is an unsatisfactory situation, as a result of acting on that information the Secretary of State may decide to exercise his powers under Clause 29. If that is done, then Clause 30 is the blockbuster— if I can put it like that. That seems to me to be a perfectly logical way of going forward. The amendment not only fits in, but also improves that logic. I beg to move.

6.15 p.m.

Lord Rodger of Earlsferry

My Lords, the key point mentioned by the noble Lord, Lord Williams, was that the powers under Clause 29— Section 29 as it will be — would have to be exercised by the Secretary of State on a proper basis. Of course I accept that. If there were not a proper basis, and in particular if there were not a proper basis in fact— if he were merely to take the rumours of the hedgerows and act upon them— then he would be subject to judicial review. The courts nowadays have become astute to examining such matters. It is therefore a presupposition of the correct exercise of a power under Clause 29 that it is used on a proper basis.

So far I see no divergence between the noble Lord and myself. However, I cannot accept the following-through of his logic. I accept that Clause 28 is envisaged as being used for purposes in connection with Clauses 29 and 30, as I said. But it does not follow that Clause 29 should be limited to circumstances where information has come to light or been provided on the basis of a direction under Clause 28. For example, a situation could arise where the Secretary of State acquired perfectly good and sound information which provided a proper basis upon which he could determine that a specific service was not being provided by the council, and where he could conclude that without obtaining information under Clause 28. In that situation it would not be appropriate that his exercise of Clause 29 should be delayed until he had gone through the machinery of Clause 28, provided that the factual basis on which he was proposing to act was established.

There would of course be the added possibility that, notwithstanding the giving of a direction by the Secretary of State in Clause 28, nonetheless the council failed to provide the information that was requested or required to be given under that provision. I accept that in such a situation the Secretary of State could take legal proceedings against the local authority. But again, one may be dealing with a situation where the need for the Secretary of State to instruct the local authorities to put in place joint arrangements is a matter of urgency. For example, it may be that inadequate services are being provided for children. In that situation it would not be desirable that the exercise of the Clause 29 powers should be delayed simply because the council failed to respond to Clause 28 and the Secretary of State therefore had to litigate before he could use Clause 29.

For those reasons, because there may be cases where there is a proper basis for action under Clause 29 without the Secretary of State invoking the provisions of Clause 28, we do not consider that Amendment No.62 is acceptable. In those circumstances, we believe that the flexibility of Clause 29 should be given to the Secretary of State, always remembering that it can only be exercised on a proper basis.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord for his reply. However, I am rather more worried having heard his reply than I was when I started. I just do not think it is enough to rely on judicial review. Judicial review is becoming a common process but it is an awkward and unsatisfactory process. Furthermore, it prejudices those who are taking public officials— officials paid by public funds— who can hire distinguished counsel at public expense and whose costs are then met, if necessary, if judicial review is thrown out and the judge decides that he is prepared to award costs against the person who is trying to take the Secretary of State or the local authority to judicial review.

I do not think that judicial review is an adequate mechanism for ensuring that the Secretary of State behaves in a fully responsible way. Judicial review is very much loaded in favour of the Secretary of State; and possibly it should be. I am not arguing that one way or the other. I am simply saying that it is not a proper vehicle. There should therefore be a provision in the Bill.

Secondly, I am concerned when the noble and learned Lord says that the Secretary of State may have other information that does not come from a direction under Clause 28. We must, after all, deal somewhere in open government. We must make sure that the information on which the Secretary of State may make a direction under Clause 29 has some basis in fact and that a local authority has the opportunity to reply.

For example, as president of the CPRW I can allege that the Powys council is not obeying its development plan. As president of the CPRW I carry, I believe, a certain amount of authority with the Secretary of State; I can prove this, that and the other; I can say to the Secretary of State, "This must be done"; and a court would probably uphold the function of the CPRW in doing it. The Secretary of State might reasonably say that it was perfectly good information and that he would do something about the council purely on the basis of that information. That is exceedingly unfair to Powys council. It should be given a chance to say what is the truth; hence the Secretary of State would make a direction under Clause 28, and, if Powys council did not reply, the silence would implicate the council. But Powys council would no doubt reply to the CPRW allegation.

We would therefore have a quite simple situation. Where the Secretary of State gets evidence, however valid, from sources other than directions, under Clause 28 we would have quite a simple mechanism for ensuring that the council in question has the right of reply. That must be right. It seems that the Secretary of State should take action under Clause 29 only when he has that information from the council, whatever other information he may have from whatever other source. If I am arguing slightly strenuously it is because I am trying to convince the noble and learned Lord that this is the right position to take. I hope that he agrees with me.

Lord Rodger of Earlsferry

My Lords, with the leave of the House, I do not think that we are really all that far apart. As I have stressed on a number of occasions, the powers here are reserve powers. They are not ones which the Secretary of State is itching to use. He is not desiring to have to give a direction to local authorities to enter into these arrangements. He does not particularly want to have to set up joint authorities. These powers are there to remedy possible situations where there has been a failure on the part of the local authority.

As I have said on a number of occasions, because he does not particularly wish to intervene he would of course envisage that before he exercised powers— for example, under Clause 29— he would consult with the local authorities as to whether or not that was the way to go forward. Nonetheless, one has to bear in mind that there may be circumstances where there is a complete breakdown of a particular service. It may be known to everyone and be clamant. In that situation the Secretary of State could act on the information, if it was perfectly obviously correct, and say to the local authority, "Will you remedy this by entering into such an arrangement", and then give it the opportunity to do so. If it did not, he could invoke powers under Clause 29.

In that situation the local authority would no doubt come forward and explain what it was doing and so on. In that way there would not necessarily be the need always to use the powers under Clause 28 and the information would come forward. However, there may be times when it is necessary to get specific information. What I say is that one cannot and should not limit the occasions upon which Clause 29 can be used to those occasions where it is necessary to use Clause 28. It may be that a local authority will volunteer the information required and, having considered the information which has been volunteered by the local authority, the Secretary of State will nonetheless say, "I understand what you are doing. You have explained it very fully. Nonetheless I consider that the standards of service provided are not adequate and therefore you must enter into a joint arrangement". In that situation he would have the information. He would not have had to direct it. He would have the information on which he would then proceed to make the direction under Clause 29. It is for that kind of reason that I believe it would be wrong to limit the use of Clause 29 to those circumstances where it would be necessary to use Clause 28.

Lord Williams of Elvel

My Lords, I do not think that the noble and learned Lord has either convinced me or indeed himself. He has two arguments. The first is that the Secretary of State is not itching to use these powers; he is not particularly interested in Clause 28 and will not go out and push people into doing things. The second argument is that he will have information anyway from the council concerned; or if he does not, the council will be guilty of not performing in the way that it should. It seems to me that, for the protection of councils, this amendment or something like it —the noble and learned Lord says that we are not all that far apart— is required. If councils do not give the information required under Clause 28, there is a clear admission that they are not prepared to defend themselves and the Secretary of State can make a direction under Clause 29. However, I see that we shall not get very far. I hope that between now and Third Reading the noble and learned Lord will reflect on this matter because, although it is a minor point, it is one which gives some protection to councils. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Castle Morris moved Amendment No.63: Page 22, line 28, at end insert ("in particular to ensure effective strategic planning").

The noble Lord said: My Lords, on behalf of my noble friend Lord Prys-Davies and myself, whose names appear above this amendment, I must first of all apologise. It is an important amendment and I cannot be brief. Therefore I shall try to be quick. I must also apologise for raising an issue which was not really touched upon either at Second Reading or at the Committee stage. It is only just becoming clear that arrangements in the Bill for town and country planning will significantly change the terms on which strategic transport and land use planning will be carried out in the future.

At the present time these vital concerns are addressed through the structure plans of the eight counties. The policies in these plans have to conform to Welsh Office-DoE planning guidance and they are subject to wide public consultation through an examination in public— that system is well known— presided over by an independent planning inspector. There is full coverage of these plans across Wales whereas there is only patchy coverage of district or borough local plans. The Bill appears to ensure that the democratically agreed policies in these eight structure plans as well as those in local plans, mineral plans, waste disposal plans and the like, where they exist, will continue to apply to the new unitary authorities until such time as they can draw up and adopt unitary development plans for their areas. So far, so good. But there is deep concern among many professional planners— the Royal Town Planning Institute and environmental bodies such as the Campaign for the Protection of Rural Wales, of which I am a trustee— that the quality and scope of strategic planning will be very much diminished in future when left to relatively small unitary authorities to carry out, quite possibly in isolation the one from the other.

In its response to the Secretary of State's White Paper proposals, the County Planning Officers' Society in Wales identified a list of key planning functions where it believed that arrangements for joint working would have to be established. I am indebted to them for ordering my thoughts on this topic and providing a number of examples. This list included such things as strategic transport planning, minerals planning, conser-vation of the natural environment— for instance, by the designation of green belts; determining the overall provision of housing, and the location of major economic regeneration projects like power stations.

In addition, the society identified a further list of services that it believed would inevitably suffer from a loss of quality unless effective collaboration between unitary authorities took place. That list included such things as formulating economic development strategy, especially when unitary authorities are required to work with the WDA, the DBRW and the European funding section of the Welsh Office; recreation and tourism provision; land reclamation design and implementation; and the provision of what might be described as "countryside services"— such things as encouraging access to the countryside, providing country parks, woodland management, archaeological advice, and so on.

It may well be said by the Government that all these important functions will be adequately addressed by the proposed unitary authorities, both in the unitary development plans and through any joint working arrangement that might be entered into, either voluntarily or under the direction of the Secretary of State.

The aim of this amendment (I apologise again for it) which is a probing amendment at this late stage, is to seek clarification of the way it is intended, through the proposed framework of unitary authorities, to ensure that there is always a proper distinction between strategic planning policies and the more detailed application of those policies at local level, taking account of local conditions and sensibilities. This distinction between strategic and local planning is clearly enshrined in the Planning and Compensation Act 1991.

Perhaps I may put my anxiety into questions, of which I have given plentiful notice. First, how will the Secretary of State ensure that the important strategic functions identified by the county planning officers are not undermined or hijacked by short-term, narrow, parochial ambitions, which are quite likely to surface in small unitary authorities?

Secondly, how will the Secretary of State ensure that strategic planning, if it is conducted behind closed doors under joint working arrangements between the unitary authorities, results in policies which command broad public support, as is currently ensured through the wide consultation which takes place on county structure plans?

There is a real and widespread fear that, without transparency and consultation, jointly agreed strategic policies will result from what I may describe as the lowest common denominator (the LCD of interest) and will command very little respect and adherence. I beg to move.

6.30 p.m.

Lord Rodger of Earlsferry

My Lords, I recognise that this is a probing amendment. The position which the Government have adopted as regards strategic planning raised by the noble Lord, is to recognise that it is one of the matters— the noble Lord also mentioned transport and minerals— where it may very well be necessary or desirable that a view which is wider than that of a particular individual unitary authority should be taken. The Government recognise that. That of course falls within the broad approach in Clause 29, which we have looked at on a number of occasions.

I go back to the basic philosophy behind these clauses in the Bill. These are matters where we would expect the local authorities charged with these functions to recognise for themselves; namely, that it would often be desirable for them to have regard to the position in a neighbouring authority and so on, in order to take proper decisions.

So we would expect that many such arrangements would be entered into by the unitary authorities on a voluntary basis, as the noble Lord really anticipated. During the period when it exists, Clause 29 remains as a fallback and reserve power for the Secretary of State where he considers that a particular function— strategic planning is obviously one of them— in a particular area would be best discharged by the use of some joint arrangement. In that situation a direction under Clause 29 would be appropriate.

That is the general approach which underlies the Act. I accept that the amendment is a probing one, but it is not really necessary. We believe that it concerns simply one of many kinds of functions which we would expect to be considered by the new authorities and appropriate decisions taken or the back-up powers used to provide the necessary check. The noble Lord asked me two specific questions. I have not got the necessary, detailed answers to those at this stage, but I shall write to him about them.

Lord Morris of Castle Morris

My Lords, I am grateful to the noble and learned Lord, as always, for a very straightforward and succinct reply. He recognises that the Government may need to take, if I quote him correctly, a wider view from time to time on matters like transportation and strategic planning. I am delighted to hear that.

He argues also that local authorities should realise for themselves the necessity for making arrangements at this level and for this kind of eventuality. I am not sure that I would necessarily share his and the Government's faith in the total wisdom, energy and good sense of every local authority even within Wales, to do that kind of thing. No doubt many will, but, in my view and I believe in the view of many noble Lords on this side of the House, the Bill ought to be providing safeguards for the "what-if-they-don't?" syndrome.

As we said when my noble friend Lord Williams of Elvel argued so cogently on Amendment No.62 and the directions which can be created under Clause 29, the arrangements as they stand are imperfect. I believe that there is room for quite a lot of tidying up and improvement in this area of the Bill. The noble and learned Lord said that the new authorities should be doing that, but in that particular case it may very well be too little and too late. However, I take his assurance that he will write to me. I shall look carefully at what he says in his letter. I shall go back and take the advice of the considerably worried people who have made representations to me. Perhaps even at the last minute on Third Reading we shall come back to this question, if we have not by then been totally satisfied. Until then, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No.64: Leave out Clause 29 and insert the following new clause:

("Joint working arrangements 29. — (1) Where it appears to the Secretary of State on the basis of information provided as a result of a direction given under section 28—

  1. (a) that particular functions of a new principal council should be discharged in accordance with arrangements entered into by that council and one or more other such councils in relation to the exercise of those functions, but
  2. (b) that satisfactory arrangements for the exercise of those functions will not be, or are unlikely to be, in force on or after 1st April 1996,
he may, at any time before 31st March 1999, give a notice in writing to the councils concerned requiring them to prepare and submit to him for approval, within a time specified in the notice, arrangements in relation to the exercise of specified functions. (2) The councils to whom such a notice has been given shall submit arrangements to the Secretary of State in accordance with the requirements of the notice. (3) Where the councils concerned have submitted arrangements to the Secretary of State under subsection (2) he shall—
  1. (a) approve the arrangements as submitted;
  2. (b) approve the arrangements subject to such modifications as he considers appropriate; or
  3. (c) reject the arrangements.
 (4) Where the Secretary of State approves the arrangements, whether under subsection (3) (a) or (b), he may, at any time before 31st March 1999 give a direction to the councils concerned requiring them to implement the approved arrangements. (5) Where—
  1. (a) any council to whom a notice under subsection (1) has been given shall fail to submit arrangements to the Secretary of State in accordance with the requirements of the notice, or
  2. (b) the Secretary of State rejects the arrangements in accordance with paragraph (c),
he may, at any time, before 31st March I999, give a direction to the councils concerned requiring them to make specified arrangements in relation to the exercise of those functions specified in a notice given under paragraph (1). (6) The arrangements specified may, in particular, be, or include, arrangements for the joint exercise of functions. (7) In this section "specified", in relation to a direction, means specified in the direction. (8) In considering whether to approve arrangements under subsection (3), or give a direction under subsection (5), the Secretary of State shall have regard, in particular, to the desirability of the functions in question being discharged effectively and in a financially efficient manner. (9) A direction under subsection (4) or (5) shall remain in force—
  1. (a) until it is withdrawn by a notice in writing given by the Secretary of State to the councils concerned; or
  2. (b) where a period is specified in the direction, during the period for wtich the direction is to have effect, provided that the direction has not been withdrawn by the Secretary of State.
 (10) Nothing in subsection (9) shall be taken to affect the power of the Secretary of State to give a further direction under subsections (4) or (5) provided that the procedure set out in section 28 and this section is first undertaken.").

The noble Lord said: My Lords, I believe we are all agreed that to set up a body corporate under Clause 29 will be a drastic step. It has been described as a reserve power. This amendment will require the Secretary of State to give local authorities an opportunity to design their own joint arrangement schemes before he can direct them to implement his scheme.

In Committee the noble and learned Lord the Lord Advocate pointed out that an amendment that had been moved to achieve the purpose of this amendment was flawed because it failed to provide what was to happen in the event of a voluntary scheme being rejected by the Secretary of State or authorities being unable or unwilling to agree a scheme. In Committee I immediately agreed that the amendment was flawed. I believe that subsection (5) of the amendment in its present form corrects that defect. Your Lordships will see that if a voluntary scheme is rejected by the Secretary of State or the local authorities fail to submit a scheme, the Secretary of State will be empowered to impose an arrangement. The thrust of this amendment is to ensure that local authorities are given the opportunity to design their own schemes before the Secretary of State exercises the power under Clause 29. The local authorities hope that the Secretary of State will look with sympathy at this amendment.

Lord Rodger of Earlsferry

My Lords, as the noble Lord has explained, the effect of Amendment No.64 is to require the Secretary of State, before making a direction under Clause 29, to inform the councils of his anxiety and then require them to submit for his approval arrangements for the exercise of the particular functions. If the Secretary of State approves the arrangements, it envisages that he will give a direction that requires their implementation. If he does not approve them, or none is submitted for his approval, he will issue a direction specifying other arrangements. In substance, this appears to the Government to be a rather elaborate way of allowing local authorities to work out their own arrangements before the power of direction under what will be Clause 29 becomes available.

I am sorry to harp on a theme that I have mentioned on a number of occasions, but the Secretary of State has a marked preference for voluntary joint arrangements. He has no desire to operate the powers under Clause 29 to set up statutory joint arrangements other than where it is absolutely necessary.

The Government can see the merit in local authorities working out their own arrangements. If they do that, the need for statutory arrangements will not arise. This clause envisages that that may not always be possible, and this clause will be used where in effect voluntary arrangements have not been possible.

I emphasise that my right honourable friend the Secretary of State will use this power only reluctantly. He prefers to see local authorities work out their own voluntary joint arrangements. I stress that he will also consult the authorities before issuing a direction. I believe that in most circumstances the Secretary of State will consider himself to be at risk of challenge in the courts under the judicial review procedure if he does not consult. However, when services to a local community are at risk— the situation where it is envisaged that this power may be used — the Secretary of State must have the flexibility to be able to act swiftly to protect those services. The amendment would restrict that ability. Having regard to the explanation as to the circumstances in which this power will be used, I urge your Lordships to leave the power as it is and reject the amendment.

Lord Prys-Davies

My Lords, I have listened carefully to the response of the noble and learned Lord. Clearly, those who advise us will have to study his words with care. I was glad he said that the Secretary of State had a marked preference for voluntary arrangements. I find that encouraging. We have no means of knowing whether his successor will take a similar view. We would have been happier if the spirit of this amendment had been embodied in Clause 29. It may well be that the clause is elaborate. We would be very happy if the Welsh Office simplified it. However, I have a feeling that the gap between us is not all that great. We shall be looking to those who advise us for further guidance. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, if Amendment No.65 is agreed to, I cannot call Amendments Nos.66 or 67.

Clause 30 [Joint authorities]:

Lord Prys-Davies had given notice of his intention to move Amendment No.65:

Page 23, leave out lines 9 to 16 and insert ("he may by order establish a joint authority for the area of the councils to which the direction relates which may be a body corporate, the membership of which shall consist of members of the councils concerned and nominated by those councils, to discharge those functions to which the direction relates, from a date specified in the order, until such alternative arrangements for the exercise of the functions as appear to him to be necessary are brought into force.").

The noble Lord said: My Lords, I have had an opportunity to study very carefully Amendment No.66, and in the circumstances I do not propose to move Amendment No.65.

[Amendment No.65 not moved.]

Lord Rodger of Earlsferry moved Amendment No.66: Page 23, line 12, at end insert:

The noble and learned Lord said: My Lords, an identical amendment to Amendment No.65 was moved in Committee and was withdrawn when I undertook to come back with an amendment that embodied the spirit of it. I hope that Amendment No.66 fulfils the spirit of the undertaking I gave at that time. In the light of that, the noble Lord has withdrawn Amendment No.65.

Amendment No.68, to which I wish to speak at the same time, will remove the mechanism for a body created by a joint authority to inherit the property and rights associated with its functions. Your Lordships will recall that at Committee I undertook to consider whether that provision was necessary and whether the contingency was sufficiently real to justify the inclusion of the provision. The matter has been considered and we concluded that the contingency was so remote as not to require provision in the Bill. Therefore, the amendment is brought forward.

Clause 30, as amended by Amendments Nos.66 and 68, would allow the Secretary of State to establish joint authorities whose members would be drawn exclusively from the councils concerned and would be appointed by those councils. However, there is a possible contingency — that in default of such appointments the Secretary of State should have the power to appoint committee members who may not necessarily be members of the authorities concerned.

Amendment No.67 would seek to remove the Secretary of State's power in that respect. The Government cannot accept that amendment because it would leave a joint authority, and therefore the effective delivery of services, in limbo if one or other of the councils concerned did not appoint members. We hope that that will not happen often, but to cater for that contingency the measure provides for the Secretary of State to have the power to ensure that any joint authority which is established is able to act effectively to safeguard and deliver services. However, I emphasise that there should be no need for the Secretary of State ever to have to use this power. Provided that the local authorities themselves appoint the requisite number of members to a joint authority created under the clause, the Secretary of State will not be able to make any appointments to the authority. I beg to move.

Lord Prys-Davies moved, as an amendment to Amendment No.66, Amendment No.67: Leave out lines 7 to 15.

The noble Lord said: My Lords, I thank the noble and learned Lord the Lord Advocate for tabling these amendments and for his explanation of their wording, which is complicated. Nevertheless, I should be grateful if the noble and learned Lord could give the House two assurances. The first is that it is intended that the total membership will be appointed by the local authorities. The second is that the Secretary of State will exercise his power of appointment only in default of local authorities making the necessary appointments. I beg to move.

Lord Rodger of Earlsferry

My Lords, I had intended to make that clear, but if I have not I am happy to do so. It is intended that the total membership of such joint authorities shall be provided from the local authorities. I stress that only in default of such being provided will the Secretary of State's power arise.

Lord Prys-Davies

My Lords, I beg leave to withdraw Amendment No.67.

Amendment No.67, as an amendment to Amendment No.66, by leave, withdrawn.

On Question, Amendment No.66 agreed to.

Lord Rodger of Earlsferry moved Amendment No.68: Page 23, line 33, leave out from ("established") to end of line 35.

On Question, amendment agreed to.

[Amendment No.69 not moved.]

Clause 31 [Decision making procedures of principal councils: experimental period]:

Lord Rodger of Earlsferry moved Amendment No.70: Page 24, line 7, at end insert: ("() No application may be made under subsection (1) except on a resolution of the council concerned passed by a two-thirds majority of those voting at a meeting of the council specially convened for the purpose.").

The noble and learned Lord said: My Lords, the amendment provides a guarantee to ensure that experimentation schemes as envisaged in the clause cannot be embarked upon without the support and consent of a wide body of opinion within the applicant council. The terms of the amendment ensure that no application for such a scheme can be submitted to the Secretary of State without there first having been proper consideration of the proposal within the council itself. Minority groups will thus have the opportunity to consider and comment upon any proposal to disapply the political balance required. I beg to move.

On Question, amendment agreed to.

[Amendment No.71 had been withdrawn from the Marshalled List.]

Lord Prys-Davies moved Amendment No.72: Page 24, line 12, leave out paragraph (b).

The noble Lord said: My Lords, the amendment seeks to leave out one of the most worrying provisions in the Bill. Your Lordships will appreciate that Clause 31 makes it possible for the statutory social services committee to be removed by the Secretary of State on the application of a new council, subject of course to an affirmative resolution.

The principle of the unifying social services committee arose after the report of the departmental committee under the chairmanship of the late Lord Seebohm. I have a feeling that Lord Seebohm would have been astonished to read Clause 31(2) (b). After all, the need for a social services committee was the central recommendation of his committee and the duty to set up the committee is at the heart of the 1970 Act. However, Clause 31(2) (b) allows the Secretary of State to reverse what has been the central policy for the past 24 years.

We say that the reversal of such a policy should not be arranged in a deal between the Welsh Office and the individual councils, even if that is subject to an affirmative order. To dispense with the committee would be a drastic change which could result in a fragmented service and serious harm to vulnerable people. Parliament having provided in the 1970 Act that every local authority should have a social services committee, it is for Parliament to reverse that fundamental policy only after the issue has been properly debated in the light of an objective and authoritative review by an independent committee. Until such a review has been concluded, it would be premature and irresponsible to take such a fundamental step as dispensing with a statutory committee, even on a ad hoc or experimental basis. Therefore, the need for a statutory committee is as true today as it was in 1970. I beg to move.

Lord Cledwyn of Penrhos

My Lords, my noble friend has made a persuasive speech and I propose to be brief. The statutory social services committee with responsibility for planning services for all vulnerable groups works in an area of fundamental importance to the individual and to the family. We are constantly and properly reminded by responsible sources of the need to strengthen the provision for those who are vulnerable and unable to defend themselves and to make the system of care in this country more co-ordinated. Our experience has convinced us of the need to strengthen the social services committee, as my noble friend has argued. This is the one body which is accountable for discharging the social services and this is not the time to disband it or to weaken it in any way.

We have been reminded that the need for a statutory social services committee was the major recommenda-tion of the committee chaired by the late Lord Seebohm, for whom the House had an immense respect. We still miss the noble Lord. His recommendation was accepted by the then Labour Government and it was established by Clause 2 of the Local Authority Social Services Act 1970. Perhaps I may be allowed to mention that my noble friend Lady Serota piloted that Bill through your Lordships' House.

The existence of a social services committee, with its professional links, has helped considerably to integrate the social services. We believe that the absence of such a committee would lead to awkward issues and the problem of co-ordination being ignored, skated around at the highest level or, indeed, put on the shelf. And yet, under Clause 31, the Secretary of State, on the application of a council and subject to the affirmative resolution, is free to authorise a council to dispense with that statutory committee.

I appreciate that initially dispensation would be for an experimental period. However, without the statutory committee, in my estimation the social services would be in grave danger of fragmenting to a point at which serious harm may be inflicted on people and their families. That worries me when I consider the implications.

There is a continuing need, stretching out to the next century, for that statutory committee. I believe that the Welsh Office and the new Welsh councils should not be tempted to dispense with it. Therefore, Clause 31(2) (b) should be removed as we proposed in the amendment.

7 p.m.

Baroness Faithful!

My Lords, I rise to support the amendment. I wonder whether the role of a social services committee and which Acts of Parliament it must administer has been fully recognised.

It is a question of accountability. For example, a social services committee is responsible for administer-ing the Adoption Act. Those of us who have worked in social services departments will know that all those who are applying to adopt a child and the children who are to be adopted are brought before a subcommittee of the social services committee. Is that to be left entirely in the hands of the officials? That cannot be right and that is not the way in which a social services department operates.

There are several other issues for which the committee is responsible. Social workers have a terrible responsibility in the field of child abuse. If there is no social services committee, who is accountable? Is it to be the social services staff? Who is to appoint them if there is no committee? It seems to me that it has not been fully recognised how the department operates.

There are various other spheres in which there is accountability. Social services committees are the links between the officers of the social services department and the people of the area. I give one example. In one area that I know it was proposed by the officers that all the old people's homes should be closed. Had there not been a social services committee to act as a link between the people of the area and the officers, what would have happened?

I feel very strongly about this issue, particularly because it means that the officers must carry the responsibility for matters for which they should not be ultimately responsible. They must feel that they have the support of the social services committee which represents the people of the area.

Furthermore, I agree with the noble Lord, Lord Cledwyn, that Lord Seebohm would be appalled by this. Had he been here, he would certainly have spoken against the Government's proposal. It goes to the root of accountability of officers of a local authority. Why should they carry full responsibility when councillors have been elected to represent the people of the area? I support the amendment and I hope that my noble friend on the Front Bench will be able to accept it.

Lord Rodger of Earlsferry

My Lords, I cannot accept the amendment. The intention behind Clause 31 is to allow local authorities in Wales the opportunity, which many have asked for, to experiment with alternative forms of political management within a framework provided by the existing system.

The Government believe that authorities wishing to experiment should be allowed to do so in circumstances which meet the criteria laid down in this clause. It is extremely important to note that, were an order made that Section 2 of the 1970 Act did not apply to the council, so that it was under no obligation to establish a social services committee, that would in no way diminish the obligation upon the local authority to provide the services; nor would it have the effect of casting the whole burden of responsibility for the provision of such services onto the officials.

Clause 31 contains a provision which has been very carefully drafted. I shall be corrected if I am wrong but I believe that it is one of the few clauses in which, in subsection (4) one finds the words: The Secretary of State shall not make an order under this section unless". Therefore, the provision is not that where such and such appears to the Secretary of State, he shall make an order but, on the contrary, the higher test is laid down in the statute that: The Secretary of State shall not make an order under this section unless … the council's decision making procedures as so altered will, in his opinion, produce (in relation to their functions) a satisfactory basis for organising", and I ask your Lordships to note the following three words: efficient, effective and accountable local government for their area". Therefore, there is no question of the Secretary of State making such an order unless he is satisfied that what is being proposed will provide efficient, effective and accountable local government.

For example, it may be possible— and this is purely hypothetical— to have a children's committee instead of a social services committee. Its members would be councillors, in the same way, but it would be responsible for dealing with all services affecting children. That may include adoption, education, other elements relating to social services, housing and so on as they touch upon the affairs of children. That may be a way in which such a service may be organised. I merely give that as a hypothetical example.

There is no question of the service not being provided; it would be. Not only is there a built-in safeguard of the reversed onus on the Secretary of State as provided in Clause 31(4) but, in addition, as has been recognised by noble Lords, such an order can be made only on the basis of an affirmative resolution. I believe that that is a true measure of the seriousness of the step. It is not a matter which the local authority can enter into lightly; it is not something which the Secretary of State would approve lightly; and I am sure that it is not something which Parliament would approve lightly.

We say that, where a scheme was proposed which met the kind of test laid down in subsection (4), then, in that situation, it should be possible for the council to proceed with such a scheme on an experimental basis. We should always bear in mind the fact that, if it proved against expectation to be unsatisfactory, the Secretary of State may revoke the scheme at any time in terms of subsection (5).

There are many safeguards built into the provision. When such safeguards are taken into account, I believe that the matter is adequately dealt with and that the provision in subsection (2) (b) is satisfactory.

Lord Howell

My Lords, I hesitate to inject myself into a Welsh debate, but I have a little Welsh ancestry which goes back a long way and which I hope entitles me to do so. I also have a little local government ancestry which is much more recent and which forces me to my feet to say that this is a monstrous proposal. It is sheer dogma. There is no other reason to put such a proposition before the House to remove the long-standing and traditional obligations of all local government committees to be responsible in every way and in every particular for the decisions and the actions which are taken.

When I was in a responsible position in the City of Birmingham, I found myself in the Chancery Court on a matter such as this where Mr. Justice Vaisey, as he then was, held — to my regret, as we lost the case— that the City of Birmingham was one and indivisible. It was not possible for us to argue that one committee had powers which could be exercised in isolation from the powers of the city as a whole. Here, the Government are proposing to go much further than that in making a distinction between committees. As the noble Baroness and my noble friend on the Front Bench said, it is a proposal which states that officials can be allocated responsibility because— and I hope that I heard the noble and learned Lord correctly— that might be an experiment in management. Well, we are having too many such experiments in management at the expense of the democratic process. The proposal before us is yet another one.

In my view, and as a result of my experience, I do not believe that members of a local authority or of any social security committee can absolve themselves from responsibility for what they may choose to do in the exercise of the clause. If I am right, it means that, although we may have such an experiment in management, every one of their decisions must be reported to a local authority so that it can, if it wishes, exercise the obligations that it clearly has in law. Putting it at its most generous, that means another increase in bureaucracy because local authority members cannot absolve themselves of the ultimate responsibility for every decision.

That being the case, I hope that the Government will withdraw the proposal and think again. If they do not do so, I hope that my noble friend, who will probably not feel like testing the opinion of the House at this late hour will think it right to return to the matter at a later stage.

7.15 p.m.

Lord Rodger of Earlsferry

My Lords, for the sake of clarification, I simply add that the only proposal here is to permit councils not to have a particular committee. It does not say in any respect that the responsibility for that: will be devolved from the local authority to the officials. Of course, it will remain a question of the organisation of the local authority as to how those concerned wish to deal with it, whether by setting up, as I suggested, a children's committee or otherwise. It is only the provision that requires one specific committee to be included among the council's structures which is in issue.

Lord Prys-Davies

My Lords, I should like to thank my noble friend Lord Cledwyn for his powerful speech, the noble Baroness. Lady Faithfull, and, of course, my noble friend Lord Howell. Notwithstanding the firm tenor of the speech made by the noble and learned Lord the Lord Advocate, I very much hope that the Secretary of State will ponder long and hard over the views that have been expressed this evening.

The noble Baroness, Lady Faithfull, referred to the wide span of functions that are covered by the committee. Indeed, it covers 14 functions which are set out in 14 Acts of Parliament. That illustrates that social need is complex and that it can rarely be divided so that each part is satisfactorily dealt with by a separate service. However, as I understand it, the local authorities in Wales will be tempted to go down that route.

I was not aware— although, no doubt, it is my failing — that Welsh local authorities had applied for exemption from the 1970 Act. I would be most grateful if the noble and learned Lord could let us have a list within the next few days of those local authorities which have requested such an exemption.

On these Benches, we are not prepared to agree that this is an area which is ripe for experimentation. Indeed, I am advised that there is already an accumulating body of evidence— and, no doubt, the noble Baroness, Lady Faithfull, will support this— which suggests that, where local authorities have experimented with structures deemed to be within the framework of the 1970 and 1972 Acts, it has, nevertheless, tended to make accountability lines more blurred and, as a result, services and staff morale have suffered.

As my noble friend Lord Howell quite rightly said, this is not the time for me to press the matter further. However, I am sure that either we in this House or my colleagues in another place will return to the clause to remove that subsection from the Bill. I can take the matter no further this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.73 not moved.]

Clause 32 [Decision making procedures of new principal councils: permanent provision]:

Lord Rodger of Earlsferry moved Amendment No.74: Page 24, line 48, at end insert: ("() No application may be made under subsection (1) except on a resolution of the council concerned passed by a two-thirds majority of those voting at a meeting of the council specially convened for the purpose.").

The noble and learned Lord said: My Lords, the above amendment follows the principle of a similar amendment in relation to Clause 31. I beg to move.

On Question, amendment agreed to.

Schedule 11 [Funds]:

Lord Rodger of Earlsferry moved Amendment No.75: Page 97, line 28, leave out ("This section'') and insert ("Subsection (2) above").

The noble and learned Lord said: My Lords, Section 62 of the Local Government Finance Act 1992 applies where an authority has failed to set a new budget within 21 days after capping. Essentially, it prevents the authority from receiving council tax income until such time as it sets a new budget in accordance with the capping order. The new Welsh authorities will not have a collection fund or general fund. There would therefore be no transfer between the funds to which subsection (2) could apply. It follows that subsection (2) would be irrelevant and is, therefore, disapplied by the amendment.

We had originally intended to disapply the whole of Section 62 on the basis that there would be no major precepting authorities in Wales. However, that element may now be relevant if, after police reorganisation, there are new-style police authorities which are major precepting authorities. In that situation they would precept on the council fund for their share of council tax income.

If a police authority were ever subject to capping, it would not be desirable for the unitary authorities in its area to be under a legal obligation to continue to pay a precept even when they knew that the police authority would have to issue a new, lower precept as a result of a capping order approved by the other place. I urge the House to accept the amendment. I beg to move.

On Question, amendment agreed to.

Clause 41 [Transfers of staff]:

Baroness Turner of Camden moved Amendment No.75A: Page 32, line 13, at end insert: ("() Nothing in this Act affects the operation of the Transfer of Undertakings (Protection of Employment) Regulations 1981, in their application in relation to the transfer of an undertaking, or part of an undertaking, within the meaning of those Regulations.").

The noble Baroness said: My Lords, in moving Amendment No.75A, I wish to speak also to Amendment No.76 which covers much of the same ground. The two amendments have been grouped together. In Committee the noble and learned Lord the Lord Advocate made it clear that the Government anticipate that a majority of the staff affected by this Bill will be accommodated through transfers. However, there still remains a minority for whom no such assurances were forthcoming. I argued in Committee that the transfer of all employees would be beneficial. There would be opportunity for redeployment and retraining of staff to cater for the needs of the new authorities. However, I withdrew my amendment at that time and said I would return with another one on Report designed to give the protection to which we think all staff are entitled. For this reason we have drafted an amendment which quite explicitly refers to the Transfer of Undertakings (Protection of Employment) Regulations.

This is an absolutely minimalist amendment which sets out what I believe to be the legal position anyway; namely, that nothing in the Bill can affect the operation of the TUPE regulations. In that case the noble and learned Lord the Lord Advocate might ask why the amendment needs to be included in the Bill. It needs to be included because it is essential that the staff should know beyond doubt that they are entitled to the full protection available under the TUPE regulations and that those whose job it will be to administer the transitional and changeover arrangements will know it as well.

The amendments which were before the Chamber in Committee were rejected by the Government on the grounds that the Bill as drafted would be better for the staff than the terms of our amendments. I must say, however, that the local authority associations, UNISON and the Wales TUC all hold views entirely to the contrary on this issue. The noble and learned Lord the Lord Advocate has said that it was the Government's objective, as far as possible, to ensure that transfer arrangements should treat staff from counties and districts on a basis of equality. But how can this be unless all those who wish to transfer are given the opportunity of so doing? I believe that that was the procedure followed at the time of the previous reorganisation in 1974 and we do not understand why that precedent cannot now be followed. We feel therefore that it is absolutely necessary to spell out in this legislation that the TUPE regulations apply to all staff.

What are these regulations that were introduced in 1981 and then amended in 1993? Basically they are meant to ensure that workers do not lose out when their employer changes. When the regulations apply, the new employer takes over the liability in respect of the contracts of all employees who were employed by the previous employer immediately before the transfer, and of any person who would have been so employed if he had not been unfairly dismissed for a reason connected with the transfer. The new employer also takes over any collective agreement made on behalf of the employees which is in force immediately before the transfer, and also— this is very important— the recognition of independent trade unions so that the individuals are then assured of trade union representation.

The Welsh Office clearly thinks that TUPE applies, as in its guidance to the Staff Commission dated September 1993 it states: The Staff Commission will need to take account of TUPE in considering the general principles for the transfer of staff to the new authorities. Because it is the Government's intention that the vast majority of existing staff should transfer on their existing terms and conditions to the new authorities, the application or otherwise of TUPE should not prove to be a significant factor in the transfer of staff. The Staff Commission will nevertheless need to ensure that all staff who might claim to be covered by TUPE are transferred. This would minimise the risk of any legal challenge from staff who have not been transferred to the new authorities and claim that TUPE might have applied to them". In other words, the Welsh Office is issuing a warning about the need to have a care lest legal actions might result designed to obtain rights for staff who might feel disadvantaged.

We would, of course, have preferred it had the amendment we put forward in Committee been accepted. We would have liked to make it clear that all staff would be transferred and for this to be stated unequivocally in the Bill. We did not succeed with that and therefore we have now returned with this amendment. I would point out that the Government were prepared to accept that TUPE should apply in legislation such as the Railways Act, which we discussed earlier this year. A similar form of wording appeared in the first draft of that Bill when it was discussed by your Lordships' House.

As I said earlier, Amendment No.76 is another attempt to write into the Bill some protection for individuals who could be adversely affected by the reorganisation proposed in the Bill. We have put down these two amendments because we think that they present the Government with a choice as regards the kind of wording that would be most appropriate in the circumstances. In Amendment No.76 we have spelt out precisely who are the relevant employees to whom TUPE would apply. They are relevant if they are covered by Clause 41 of the Bill and that is fairly clear. However, they are also covered if immediately before 1st April 1996 they were in the service of an abolished body under a contract of employment which would have continued but for the abolition of that body. We believe that it is necessary for the avoidance of doubt to have some form of wording giving commitment to TUPE set out in the Bill. I hope that the noble and learned Lord the Lord Advocate may feel he is able to accept either one or other of these amendments for the purposes of clarification if nothing else.

I cannot emphasise too strongly that in circumstances such as those created by a Bill of this kind with its radical restructuring, there is bound to be a sense of profound instability and insecurity among the staff concerned. There is also, perhaps regrettably, a lack of trust for various reasons which I need not go into here. Therefore it is necessary in our view to spell out that rights exist and that they will be honoured. I beg to move.

Lord Stoddart of Swindon

My Lords, I hope the noble and learned Lord will consider these amendments seriously because, as my noble friend has pointed out, this is the second reorganisation of local government in Wales in a comparatively short period of time, and of course it will shortly apply to England as well. It is necessary that the staff of the existing authorities should be given an undertaking that they will be no worse off under the reorganised local government system than they are under the present one.

My noble friend mentioned that under the Railways Act employees were covered by the TUPE regulations. Of course employees have been covered by the TUPE regulations under many other privatisation Acts and I believe that local government employees cannot see why they should appear to be disadvantaged in the way they believe they are being disadvantaged by this Bill. Apparently the Minister will reply that the Bill makes the employees better off. However, the trade unions, including UNISON for whom I act as an adviser, are not convinced of this. They are convinced that the employees would be better covered under the TUPE regulations and by these amendments which have been moved this evening by my noble friend Lady Turner of Camden. I hope, therefore, that the noble and learned Lord the Lord Advocate will be able to show exactly how under this Bill the existing employees of local government will be better off than they would be if the Government accepted in their entirety the amendments which are before us now.

7.30 p.m.

Lord Rodger of Earlsferry

My Lords, the Government cannot accept the amendment. In practical and legislative terms the amendment is unnecessary because, as the noble Lord, Lord Stoddart of Swindon, will be very well aware, United Kingdom legislation cannot be inconsistent with binding provisions of European Community law. As the noble Lord will know, the TUPE regulations are the United Kingdom manifestation of the Acquired Rights Directive which applies to the United Kingdom as it does to the other member states. Directives are binding forms of legislation. It follows, therefore, that no provision in the United Kingdom statute book can affect the operation of the provisions of European law. In particular, if the TUPE regulations apply, nothing which is said in the statutes can take that right away.

As I said previously, the Government accept that, as the noble Baroness pointed out, there will be occasions when TUPE applies. That is because the kind of transfer which is envisaged is one to which the TUPE regulations apply. There will be other circumstances in which, because of the nature of the transfer and because it does not affect an economic unit which goes across an undertaking, TUPE will not apply. That is why in some cases it applies and in others it does not.

The scheme which we have here fulfils the requirements. It would have been possible for the Government simply to have said nothing and to have left the whole matter to rest upon the basis of TUPE. However, we have created a scheme which wall apply to the particular circumstances of these local government transfers. We believe that staff— who I accept must be worried about their position— will be able to look at the provisions in the statute and gain an understanding of what is proposed. If it had not been put in this form they would have had less certainty.

I reject the amendments tabled by the noble Baroness because it is not necessary to put such a provision into the statute books. Reference was made to the provision in the Railways Act, and I accept that a similar provision to that proposed by the noble Baroness applies in that case. However, the noble Baroness will be aware that the provision in that Act was made against the background of Section 93(1) of the Act which provided for the board to introduce schemes modifying the terms and conditions of employment of employees. In that situation it was thought desirable that it should be made clear on the face of the Bill that any such provision was without prejudice to the provisions of TUPE.

Nothing of that nature appears in this case. We accept that where the provisions of TUPE apply under the reorganisation, nothing which is in the Bill will take away employees' existing rights.

Baroness Turner of Camden

My Lords,1 note with interest what the noble and learned Lord the Lord Advocate said. I am glad to note that he said that the scheme which has been created will give all the cover which TUPE provides, and more. However, the reason for putting this proposal forward for inclusion in the Bill was our feeling that it was necessary to give staff assurances that they would be properly protected and looked after. Indeed, Amendment No.76 states: For the avoidance of doubt it is hereby declared that the Transfer of Undertakings (Protection of Employment) Regulations 1981 shall apply in relation to relevant employees of the abolished bodies". In other words, we wanted to spell out for people who are worried about their future that the legislation made it clear that they would have all the protection that was available to them under the TUPE regulations.

I repeat what I said when I moved the amendment. If by any chance people feel that they are being disadvantaged there will be problems associated with issues being taken to the courts and perhaps even to the European Court of Justice if anybody feels that they ought to have had the protection of TUPE but it has not been afforded to them by whatever scheme is created by the Government.

I realise that there is not much point in pressing the amendments at this stage of the evening, and I shall take away and consider what the noble and learned Lord the Lord Advocate had to say. He gave certain assurances, for which I am grateful, that the provisions of TUPE will certainly apply. I am sure that the unions, which have been watching the progress of this Bill with a great deal of interest, will study those assurances with great application. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.76 not moved]

Clause 42 [Compensation for loss of office or diminution of emoluments]:

Baroness Turner of Camden moved Amendment No.77: Page 32, line 21, at end insert ("details of which as they apply to staff affected by this Act will be available by 30th September 1994 and will be the same regulations as applied to staff affected by the Local Government Act 1985.").

The noble Baroness said: My Lords, in moving Amendment No.77 I should like to speak also to Amendments Nos.78,78A,80 and 81, with which the amendment has been grouped.

During the Committee stage of the Bill I touched briefly on the matter of compensation for staff who find themselves without employment following the restruc-turing envisaged in this Bill. Where staff are made redundant by reason of reorganisation or where they suffer a reduction in pay or conditions it is necessary that they should receive some compensation. Obviously, change cannot be effectively managed unless staff who would not have a role in the new organisation can be offered encouragement to find roles elsewhere. The Government must make early decisions on such matters so that authorities and individuals can plan on the basis of some certainty.

I understand that, based on a decision in the case of North Tyneside v. Allsop, the Department of the Environment suggests that authorities should be given the discretion to pay a severance payment of up to 66 weeks' pay less any redundancy pay to which the employee may be entitled. That would also apply to employees over the age of 50 who are entitled to an immediate pension as early retirees. I am informed that the unions representing the staff regard those suggestions as unacceptable. They believe that there should be consistent treatment between staff and therefore would like to see a mandatory scheme for all staff linked to age and length of service. For those under the age of 50 they point out that the proposals are less generous than those which applied at the abolition of the GLC and the metropolitan authorities.

Many senior staff so affected may not be able to find a new job easily in Wales. The unions ask (and we included this in the amendment) that as a minimum the 1986 regulations should also apply in Wales. The 1986 regulations provided for the maximum added years to apply to those over the age of 50 who are entitled to an immediate pension. They also provided for a doubling of the redundancy payment to those with five years' continuous local government service with no entitlement to an immediate pension and gave such staff aged 41 and over an additional four weeks' pay for each year of service after the age of 41. The maximum payment was 82 weeks' pay for those under 50.

The unions believe that a scheme of that kind would be greatly beneficial to the achievement of a smooth transition in Wales. Incidentally, it is my understanding that civil servants made redundant can receive a maximum payment of 156 weeks' pay, nearly twice that provided for in the 1986 regulations to which I referred.

Perhaps I may also speak to the other amendments in this group standing in my name. The purpose of Amendments Nos.78 and 78A is also to deal with the question of people whose contracts are frustrated. It will perhaps be recalled that when the Bill was debated in Committee I specifically asked the noble and learned Lord the Lord Advocate what would happen in the case of people who are in the minority who will not be transferred and whose contracts are said to have been frustrated (cols.773 and 774 of Hansard for 20th January applies). I expressed concern about the so-called frustration believing the term ordinarily to be used when a contact had been frustrated through illness or imprisonment. I had not heard of it being applied in circumstances where the employer no longer existed or because of a transfer of the kind envisaged in the Bill.

My noble friend Lord Prys-Davies asked (at col.774 of Hansard) whether the position of such employees would be precisely that of a redundant employee with all the rights that entails. The noble and learned Lord the Lord Advocate made it clear that he would not go so far as that. Notification of redundancy, for example, would not apply. I must say that we were not happy with that answer. Our amendment seeks to ensure that any employee faced with possible loss of employment has the same rights and protection as an employee made redundant in other circumstances. Our amendment spells out precisely what those rights are and the statutes in which they are contained.

Thus under our amendment there would be an entitlement to notification, to redundancy payments, and to sue for unfair dismissal at an industrial tribunal if it were thought to be the case of wrongful selection for redundancy. There would also have to be proper consultation with the unions as set out in the Trade Union and Labour Relations Act 1992.

That would at least afford some protection to employees who otherwise might be left in limbo as a result of the so-called frustration doctrine. It takes into account the statements made by the noble and learned Lord the Lord Advocate at col.774.

The Government should understand that if they persist in taking the view that contracts of employment are somehow frustrated, and this takes such contracts outside the ambit of protective legislation, thus denying employees the right to redundancy legislation on the statute book, they and the local authorities could well have to contend with a great deal of aggravation from discontented staff members and their unions— unions, moreover, which in the past have shown willingness to take cases into the courts and to pursue such cases with vigour, even so far as to the ECJ if that appears to be worthwhile. They have the resources, the energy and the commitment to do so.

I tell the Government and the noble and learned Lord the Lord Advocate that it simply is not worth it. If, as they say, we are simply talking about a small minority, why not accept the amendment and the propositions contained in it, which we contend are fair and reasonable? I beg to move.

7.45 p.m.

Lord Rodger of Earlsferry

My Lords, the first point I make is that the arrangements envisaged for compensation apply throughout Great Britain. That involves the Secretaries of State for Scotland and for the Environment. Compensation for local government reorganisation cannot be dealt with solely by my right honourable friend the Secretary of State for Wales. Those issues are being considered carefully at present.

It is also important to recognise that the Government have proposed increasing the maximum redundancy payment which local authorities may make from 30 weeks' to 66 weeks' pay in certain circumstances. That proposal provides a framework within which compensation arrangements for local government reorganisation may be considered further in the light of the discussions with local government officers in Wales and elsewhere.

The first of the amendments of the noble Baroness would apply to the reorganisation of the compensation regulations which applied when the metropolitan counties were abolished. I recognise that those regulations allowed redundancy payments of up to 82 weeks' pay in certain circumstances. However, as she indicated, I understand that the local authority associations and the management board have submitted draft proposals for compensation which would keep within the 66 weeks' limit. Those are of course only draft proposals at this stage. However, the Government will be considering those and all other representations which they receive before they announce their own proposals.

Perhaps I may give some indication. The Government are considering whether or not the early retirement scheme should be enhanced and expanded; and whether or not there should be detriment compensation for staff whose pay is cut as a result of the reorganisation. Your Lordships would of course expect the Government to consider the financial implications of such arrangements very carefully.

The amendment seeks to have the details of the compensation arrangements available by 30th September. I accept on behalf of the Government that it is important that staff should know as soon as possible what arrangements are likely to be made. The Government intend to finalise their own proposals in the autumn of this year and will consult on those proposals before then. I hope that I have said enough to persuade the noble Baroness that the Government are giving serious and urgent consideration to the compensation arrangements.

Some mention was made of the position on pensions for those under 50 years. Again, the Government are aware that comparatively few staff in Welsh local authorities will be aged 50 or over at the time of reorganisation. Therefore, they are giving careful consideration to the options, including the suggestion that staff aged between 45 and 50 in 1996 should have the option of receiving a redundancy payment immediately and their pension when they reach the age of 50. However, I cannot give a commitment about the outcome of those deliberations, which continue at present.

The noble Baroness also spoke to her other amendments. Clause 43 of the Bill is not novel. Indeed, it follows the precedent of Section 59 of the Local Government Act 1985. We would expect Clause 43 to be relevant only to a minority of staff. Ft provides explicitly for them to receive a redundancy payment. As I outlined in Committee, the staff concerned will know before 1st April 1996 how the reorganisation is to affect them because we envisage that staff transfer orders would be published in draft in November 1995 and would be made in February 1996. There would be full consultations between the present and new councils, the trade unions and the staff commission about the content of those transfer orders.

As a matter of good practice, the Government would expect the authorities which are being abolished to inform staff properly as to how the abolition would affect them and to explain what options are available to them. That is a matter on which the staff commission could be asked to advise.

Having said all that, the Government and my right honourable friend the Secretary of State are well aware of the very strong feelings which exist in connection with all these matters. My right honourable friend will have to take into account the views which have been expressed forcefully today. He will wish to consider those along with all the other views. He will wish to take account of the views which may be expressed in another place. If I cannot say more at Third Reading, my right honourable friend the Secretary of State will give more information at Second Reading in another place.

A number of detailed matters were raised by the noble Baroness. I know that she attaches considerable importance to them. I believe that it would be best if I write to her on those points.

Baroness Turner of Camden

My Lords, I thank the noble and learned Lord the Lord Advocate for his constructive response to my amendments. I am glad that there will be full consultation with the unions about the scheme. I am glad, too, that it may be possible to return at Third Reading with more information. Such information will certainly be valuable at Second Reading in another place.

I am glad that the strong points put forward by myself and my noble friends on behalf of the staff have been taken on board by the Government and that there is an appreciation of the deep anxiety which staff are bound to feel in any situation where they face the radical restructuring indicated in the proposed legislation. Having listened with great interest to what the noble and learned Lord said, I have made some fairly extensive notes, but I shall look with interest at the report in Hansard.I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Redundancy payments]:

[Amendments Nos.78 and 78A not moved.]

[Amendment No.79 had been withdrawn from the Marshalled List.]

[Amendments Nos.80 and 81 not moved.]

Clause 45 [Committees of existing councils for consideration of certain matters]:

[Amendment No.82 not moved.]

Viscount St. Davids moved Amendment No.83: Page 34, line 15, at end insert: ("() In making any determination under subsection (2), the Secretary of State shall secure that the number of persons who represent county councils is equal to the number who represent district councils.").

The noble Viscount said: My Lords, the noble Lord, Lord Prys-Davies, moved an amendment identical to Amendment No.82 during Committee and withdrew it after I explained that the Government understood the concern that both tiers of the existing structure should be equally represented, if the Secretary of State had to determine the membership of a transition committee.

I undertook to: consider the matter further and return with our own proposal at Report". I draw your Lordships' attention to Amendment No.83 which will achieve exactly the same purpose as Amendment No.82. I beg to move.

Lord Prys-Davies

My Lords, I thank the noble Viscount for having tabled Amendment No.83 on behalf of the Government. It fully meets the anxieties conveyed to us by the local authority associations.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No.83A: Page 34, line 28, at end insert: ("(OA) Each transitional committee shall, before the specified date, prepare and publish in relation to the implementation of the Welsh Language Act 1993 in its area—

  1. (a) a survey of existing facilities or arrangements for treating the English and Welsh languages on the basis of equality in the conduct of business of the Council in its area; and
  2. (b) a statement indicating
    1. (i) the under-provision in the existing facilities and arrangements in its area; and
    2. (ii) the steps already in progress or proposed by the transitional committee to correct the situation.
(I B) In subsection (1 A) "specified date" means a date, not later than 31st December 1995, specified in a direction given in writing by the Secretary of State.").

The noble Lord said: My Lords, we on these Benches are anxious that the objects of the Welsh Language Act 1993 should become a reality as soon as possible. Unfortunately, by the end of this year, owing to reorganisation, council members and officials through-out Wales will have their minds on many matters, apart from the implementation of the Welsh Language Act. Indeed, those councils will cease to exist from 31st March 1996 and the new councils will be operative from 4th April 1996.

The fear is that the pace of the implementation of the Welsh Language Act 1993 will inevitably slow down. The purpose of the amendment is to point out that an early start has to be made on the programme of work leading to the formulation of the language schemes. We believe that there should be a lead responsibility on the transitional committees to prepare an up-to-date statement setting out what provisions ought to be made, to be approved later on by the Welsh Language Board, so that the successor authority can proceed to implement the Act expeditiously and smoothly.

As I understand it, the transitional committee will come into existence after the Bill has been enacted or possibly even earlier. But the shadow councils will not be fully operative until about September or October 1995. That is why we believe that the transitional committee should undertake the preparatory work.

There is just one question which I should like to ask the noble and learned Lord of which I have given him notice. We believe that it would be a well-received contribution if the Government or the Welsh Office were to agree to make available a Welsh language version of this important Bill immediately after it has been enacted. The production of such a Bill would be a practical manifestation of the principle of equality.

There is ample precedent for that. Your Lordships will know that the Welsh Language Act 1993 has itself been produced in Welsh. But that is not the only precedent; the Local Government Act 1888 was translated into Welsh, although I am not sure which department was responsible for the translation. However, I am in a position to provide confirmatory evidence of its existence, so I hope that the Minister can make a satisfactory response to my request. I beg to move.

Lord Morris of Castle Morris

My Lords, perhaps I may say a word in support of my noble friend's eloquent case for the amendment. In the public sector the Welsh Language Act requires the Welsh Language Board to supervise the implementation of the principle that, in the conduct of public business and the administration of justice in Wales, the English and Welsh languages will be treated on the basis of equality. Some noble Lords will remember how hard fought was the phrase "the basis of equality" when we brought the Welsh Language Bill before the House some while ago. That was because feeling was very strong in Wales and we had as our duty to represent that feeling. It is still there.

The Welsh Language Board will do its work by assisting public bodies to prepare schemes. The proposed reorganisation of local government presents an opportunity for the new authorities to adopt bilingual policies from the very outset.

In effect, the amendment allows the bodies to do what, in the good old purple of the grammar schools, we would have called "homework". Those of your Lordships who were underprivileged and attended public schools would, I believe, have referred to it as "prep". We do not ask for the transitional committee to take decisions or to implement the requirements of the Welsh Language Act but simply, like St John the Baptist, to prepare the way: to make straight in the desert a highway for the new authorities. All we ask for is a "survey" and a "statement", purely factual matters.

The amendment would also provide— if the Government could look kindly on it— what I might call an 'earnest of seriousness" on the matter of the Welsh language. We know already that some counties and districts are Well advanced in the preparation of language schemes. Others, we suspect, are not. The Welsh Language Board might greatly benefit from knowing which areas most urgently need its help. So far as I can see, there is no compelling reason to wait to start work on Welsh language schemes. There is every reason to get on with the job, and this amendment will help to do precisely that.

Lord Rodger of Earlsferry

My Lords, the Government envisage that as soon as the Bill receives Royal Assent, the Secretary of State will issue formal guidance to transition committees on the preparatory work to be undertaken to ensure that the new unitary authority will be ale to function and to deliver services effectively from 1st April 1996. As your Lordships are aware, the guidance has already been issued in draft form to all existing local authorities in Wales. The guidance will include advice on the role of the transition committees in relation to the preparation of Welsh Language schemes by the new authorities. That aspect of the advice is not yet complete, largely because the formal guidelines as to the form and content of Welsh language schemes which the Welsh Language Board will prepare and issue under the Welsh Language Act 1993 are not yet available. In the meantime, I understand that the Welsh Language Board is happy to advise on the use of Welsh by public bodies.

The current draft guidance already makes provision "at the very least' for transition committees to: identify any schemes of existing authorities which have been approved under the 1993 Act". That is, the Welsh Language Act. We would certainly expect committees to look at the use of Welsh across the whole range of local authority business and that the information would be included in the information made available to the new authorities. We do not, however, believe that it is desirable or necessary to impose a specific requirement upon the transition committees to undertake a special survey of just one aspect of activity when we want the committees to consider all issues of service delivery.

With regard to the second part of the amendment, we feel that a requirement for a formal statement about under-provision and remedial steps on the part of the transition committee would be inappropriate. To some extent that seems to pre-empt the functions of the Welsh Language Board, and particularly its relationships with the local authorities, both the old ones and the new ones.

We believe that it would be inappropriate to impose upon transition committees a requirement that they take what would be no more than judgmental views when other courses of action might be more constructive. That is not to say that the transition committee should not have a role in considering the provisional Welsh language facilities. Our belief is that it does have a valid role, and that is vindicated and established by the inclusion of this matter in the guidance.

We feel, however, that it is a matter where a degree of flexibility is advantageous to allow the transition committees to recommend such steps as may be necessary in consultation with the Welsh Language Board. Of course, any action will be for the new unitary authorities themselves.

The noble Lord, Lord Prys-Davies, had the great courtesy to forewarn me of his point in relation to the possibility of having a text in Welsh of this particular Bill. My understanding is that the 1888 Act was a private publication, and the Welsh Language Act was published in Welsh by the Welsh Office and not by Parliament officially.

There are a number of practical difficulties in the way of such a publication. It would be a matter of requiring the most careful legal and technical translation. One particular matter seems at first sight rather to tell against the advantage of translating this Bill. Noble Lords will have been aware as we have gone through the Bill that to a very large extent it amends existing local government legislation. In effect, therefore, one would have this particular Bill in Welsh amending other Bills which are available only in English. For those reasons it may be that the scheme is not as attractive even to those who put the idea forward as it might at first sight have seemed. But I am able to tell noble Lords that in the light of the matter having been raised by the noble Lord, Lord Prys-Davies, I made the point to my right honourable friend the Secretary of State, and the Welsh Office is considering the matter further.

8 p.m.

Lord Prys-Davies

My Lords, I am grateful once again to the noble and learned Lord the Lord Advocate for his general response to the amendment. I hope, nevertheless, that the transitional committee will pay attention to the wording of our amendment. I do not propose to press it any further, but I am pleased that the transitional committee is taking the matter on board. I very much hope that it will proceed to take the preliminary steps before the statutory guidelines are approved by Parliament.

Turning to my request for a Welsh language version of the Bill, I listened carefully to what the noble and learned Lord the Lord Advocate said. I do not believe that the difficulties are insurmountable. I must say that the idea is still attractive to me. I would be quite prepared, as I believe would many of us, to draw the line at 1993, and not ask the Government or the department to produce Welsh language versions of the 20 or so Acts which are mentioned in the Bill. We are quite prepared to draw the line at 1993. I would have thought that that should be acceptable to the Government. We have been told repeatedly by Ministers, and indeed by the Prime Minister himself, that from 1993 Welsh has official status for the conduct of public business. As I said earlier, one practical means of acknowledging that status would be to produce the Welsh language text of this very important piece of legislation. I take the matter no further this evening, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.84 not moved.]

Lord Morris of Castle Morris moved Amendment No.85: Page 38, line 33, at end insert: ("(j) any grants made to voluntary organisations.").

The noble Lord said: My Lords, I rise to speak to Amendment No.85. I would also speak to Amendment No.85A if I had the foggiest idea why the two amendments have been grouped together. It may be that there is some arcane, mysterious reason which has defeated me. If there is, I beg leave simply to talk to Amendment No.85 and find out about it later.

The purpose of Amendment No.85 is to ensure that voluntary organisations in receipt of funds from local government at 31st March 1996 which would normally have been expected to continue into their 1996– 97 financial year are protected for a year from being forced to close down their activities as a result of the reorganisation process. That is the purpose of the amendment. I wish to support it with no less than five powerful arguments.

First, grant aid to voluntary organisations is particularly vulnerable under the proposals to reorganise local government. There is no obligation on the new principal councils to continue annual grants which end on 31st March 1996.

Secondly, there are many grant aided projects and posts which support the voluntary sector's involvement in local authority activities— in areas such as community care, children's services and the youth service. Very often these are funded through joint arrangements involving district and county councils and central government. Many of them will cross over the new council boundaries.

Thirdly, human nature being what it is, the new councils will understandably concentrate on setting up their own statutory services and may be very hard pressed to set up new funding arrangements for voluntary sector projects before 1st April 1996.

Fourthly, many voluntary organisations, particularly those with cross-boundary projects, may well find themselves forced to shut down their activities because new funding arrangements have not been agreed in time. Such projects would be very costly to replace.

Fifthly, this amendment places a responsibility on the new council to ensure that grant aid to voluntary organisations continues for a period of one year at 1996 level with appropriate inflationary increases. That period is short enough to allow a new authority to go its own way and long enough to permit the voluntary organisation to seek support elsewhere if it is under threat.

Those are five powerful, persuasive points which must surely melt the noble and learned Lord's stony heart— or that of the noble Viscount, or whoever has the job of answering— and compel him to concede that this harmless amendment will simply improve the Bill. I beg to move.

Baroness Faithfull

My Lords, I should like to support this amendment. This country owes much to the voluntary organisations. Many local authorities, and particularly the social services departments, could not do without the voluntary organisations. It would send up the cost of rates if local authorities did not use them. If such organisations cannot keep their budget within the money that is allotted, they have to close down under the laws of charity. Therefore, if they cannot subscribe to the charity laws, they have to close down if the local authorities do not make it possible for them to continue. The noble Lord, Lord Morris, made that point.

Perhaps I may take this opportunity of making one other point. Under the Education Act and under the children and young persons Acts, very often treasurers try to beg those in the education and social services departments in local authorities to take a cheaper voluntary organisation rather than what is best for the child. I hope that in future we may take what is best for the child and not be dominated by the treasurer's department saying that it cannot be afforded. At the end of the day that proves to be the worst way out and the most expensive.

Lord Rodger of Earisferry

My Lords, I stress that the Bill does not alter the statutory basis of local authority support for the voluntary sector. The giving of grants will continue, as it is now, to be discretionary. However, it may be that the new authorities initially will wish to continue their predecessors' policies.

The Bill provides voluntary organisations with the means to influence the decisions of the shadow authorities. In the first instance they can make contact with the transition committees to be established under Clause 45 of the Bill. The Secretary of State's draft guidance to those committees published last December invites the committees to identify existing support for the voluntary sector and to propose a strategy for their future development. The Welsh Office has given its support to a booklet called Towards Shared Aims, which sets out practical arrangements for developing links between local authorities and voluntary organisations.

Once the new authorities are elected, voluntary organisations should make contact with them and press their case. Organisations will have the opportunity to see the draft service delivery plans and to ensure that they address their needs. They will also be in a position to make representations about them.

Where an abolished authority has a funding agreement which takes the form of a contract and which extends beyond 31st March 1996, it is a liability which will be transferred by order under Clause 52(2) (c) to the appropriate new authority or authorities.

Subsections (4) and (5) (a) of Clause 51 already provide for a funding decision taken by an abolished authority but not put fully into effect to be treated as having been taken by an appropriate new authority. Thus, where a grant for the financial year 1995– 96 had not been paid in full by 31st March 1996 and the voluntary organisation had met any conditions for the grant to be paid, the balance of the grant would be a liability which would be transferred under Clause 52 again.

Having said that, what the legislation cannot do, and I believe should not do, is to create liabilities where none exists. If an authority has every year taken a decision to give an organisation a grant for the coming financial year, an expectation of funding may have been created, but there will not be any "concrete" liability which could be transferred under Clause 52. As I said, it will be a matter for the particular organisation to make its case to the new authority.

In the Government's view the amendment is unnecessary because it would not add to the scope of Clause 51 and not add to the powers that are available under Clause 52. I hope that the noble Lord will feel able to withdraw the amendment.

8.15 p.m.

Lord Morris of Castle Morris

My Lords, that is a most disappointing and saddening response to the powerful arguments which I deployed, which were supported by what I suddenly realised were even more powerful arguments from the noble Baroness, Lady Faithfull, that I wish I had thought of myself.

The noble and learned Lord said that the Bill does not alter the status quo. Quite so, exactly and precisely. We want it to alter the status quo. We want it to do just that. We want it to alter things and safeguard this vital sector, which plays such an enormous part in partnership with local authorities in the activity of funding social improvement. It places the onus of begging for help back on the charities yet again. Why not? Vice versa, why should the onus not for once just for a short time be on the fly-by-night transition committees which are here today and gone tomorrow? No great terror would be introduced into the legislative heart by a small act of charity of that kind.

The noble and learned Lord told us that an existing contract would be a liability. Any existing contract is a liability. That is ore of the things that a contract is. That gives us absolutely nothing. He has offered us nothing but crumbs of comfort— small crumbs and very stale bread, if I may say so.

But at this hour of the night I should not be successful were I to divide the House. However, I am not a bit pleased with what the noble and learned Lord has had to offer me. I shall take advice and I shall read carefully what he said. I may very well wish to come back at a later stage, suitably allied with other noble Lords from all sides of the House, and take a much sterner view of this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 [Existing joint boards and committees and port health districts]:

Viscount St. Davids moved Amendment No.85A: Page 44, line 39, leave out from ("before") to end of line 40 and insert ("1st April 1996.").

The noble Viscount said: My Lords, this is a technical amendment to define "existing" joint boards and committees and port health authorities for the purposes of this clause as those which exist immediately before the implementation date of 1st April 1996. I beg to move.

On Question, amendment agreed to.

Clause 59 [Regulations, orders and directions.]

Lord Williams of Elvel moved Amendment No.85B: Page 46, line 11, leave out ("or"),

The noble Lord said: My Lords, in moving this amendment I shall also speak to the second manuscript amendment standing in my name. Perhaps I may refer your Lordships to Clause 59 of the Bill (page 46, line 11). My first amendment, Amendment No.85B, is to Clause 59(3) and is designed to delete the word "or" after "31(1)". My second amendment, Amendment No.85C, is designed to insert after "32(1)" the words "or 52(1)". The purpose of my amendments is to ensure that orders made under Clause 52(1) are subject to the affirmative procedure in Parliament rather than the negative procedure as at present.

Perhaps I may now refer your Lordships to the orders that I have in mind (at page 39 of the Bill, Clause 52(1)). That passage is worth reading because it allows the Secretary of State to: make such incidental, consequential, transitional or supplemental provision as he thinks necessary or expedient—

  1. (a) for the general purposes, or any particular purpose of this Act or in consequence of any of its provisions or for giving full effect to it; or
  2. (b) in consequence of such of the provisions of any other Act passed in the same Session as this Act as apply to any area or authority affected by this Act".
In other words, the Secretary of State is being given authority, if the Bill passes as drafted, to change primary legislation.

That matter was studied by your Lordships' Select Committee on the scrutiny of delegated powers. I refer your Lordships to the second report of that committee where, at page 4, the committee states quite clearly: In view of this extension of the delegated power to supplemental provision, and of the Welsh Office's admission … that the power could be used 'in potentially far reaching ways', we urge the House to consider whether or not the affirmative procedure would be more appropriate in this case

In moving the amendment I am giving the House an opportunity to consider whether or not the affirmative procedure would be more appropriate in this case. There are two reasons why I believe it to be more appropriate. First, my general view is that Henry VIII clauses such as this should be, in so far as possible, designed to make an affirmative procedure mandatory on any Secretary of State who wishes to change primary legislation by order. Secondly, as a House we set up a Delegated Powers Scrutiny Committee. It produced its second report, in which it went through the Henry VIII clauses in the Bill at considerable length and with a great deal of authority. This is the only one where it says affirmative rather than negative procedure should be used. It says that there is some justification for all the others.

I believe, therefore, that the House should he given an opportunity to agree with the scrutiny committee when it recommends that the powers given to the Secretary of State under Clause 52(1) should be the subject of affirmative rather than negative procedure. I beg to move.

Lord Simon of Glaisdale

My Lords, I support the amendment of the noble Lord, Lord Williams of Elvel, with the utmost force at my command. The hour is late; the Chamber is empty and it is therefore very much a matter of honour on the part of the Government. Quite plainly, affirmative resolution procedure ought to be available if primary legislation is to be altered by a Minister.

The noble Lord, Lord Williams, gave two main reasons and the second was that the scrutiny committee was the only committee proposed by the Jellicoe Committee about which the Government expressed reservations. Of course they did. The last thing they want is to have their processes of delegated legislation scrutinised. Far better would be to shrug off, as they have for so long, the increasing anxiety of your Lordships' House, which was mentioned and, indeed, was the mainspring of the recommendation of the Jellicoe Committee and again of the Rippon Committee, which was only given initially a probationary role.

It is no use our setting up the scrutiny committee at the outset of the Session if the Executive is going to try, late at night, in an empty Chamber, with the Chief Whip having his troops on the reverse slope, to disregard what it draws to our attention.

There are two other reasons why I venture to add to what the noble Lord, Lord Williams, said. The first is that the negative procedure is quite innocuous from the point of view of the Government. In the other place the negative resolution notices are, more often than not, not reached at all; time runs out before they can reach the Order Paper. In addition to that, your Lordships, by convention— not a very strong convention, but one that the Government strongly rely upon— do not, as a matter of practice, vote against a statutory instrument. Therefore, more often than not the negative procedure gives the Government a perfectly clear run.

The second reason is that the affirmative procedure is parliamentarily so advantageous. On the affirmative resolution procedure the Minister, at the outset, explains what the regulations are and what they are designed to do. He then moves them. On the other hand, in the negative procedure, there is a scrappy debate and the Minister only replies at the end. If one is going to take parliamentary control of legislation at all seriously, this is eminently a case where the amendment of the noble Lord, Lord Williams, should be accepted.

Lord Rodger of Earlsferry

My Lords, the Government have considered the whole matter extremely carefully, not only in the light of what was said by the Delegated Powers Scrutiny Committee in its report, but also in the light of what was said by noble Lords at the Committee stage of the Bill.

Let me say straight away that I believe that much of the anxiety, particularly of the scrutiny committee, about this matter may have arisen because of the words used in the Welsh Office memorandum to the scrutiny committee. If noble Lords note, they will see that one of the factors referred to by the Committee was that, an order under this clause may involve amendment to legislation and can be used in potentially far reaching ways". That choice of words was, frankly, unfortunate. It was an inappropriate choice of words. I realise that it may well have caused considerable inconvenience to the scrutiny committee and I apologise for putting it in that way. I say that the form of words was unfortunate because it is open to misinterpretation and does not reflect the Government's intention, the existing practice in the use of such powers or, indeed, the legal position.

I inquired into the matter and I understand that it was intended that the memorandum should convey that the provisions could affect a wide-ranging nature of provisions. In other words, the local government reorganisation could touch a wide-ranging nature of provisions but that those widely scattered provisions could only be affected in minor ways. With your Lordships' permission I shall elaborate upon those points.

The first point to stress is that the powers contained in Clause 52 can be used only for matters arising in consequence of local government reorganisation. Your Lordships will see that the Bill is already a complex piece of drafting which refers to many statutes across a wide range of subjects. That is inevitable given the type of material with which we are dealing. The Bill already contains many provisions which are in effect incidental, consequential or supplemental to the main purpose of the Bill. As your Lordships would expect, much of that material is found in the schedules to the Bill. It is anticipated that in the detailed work of implementation which will follow the passing of the Bill other examples of a similar kind may be identified. Some minor, mechanical point may need to be addressed and it may be that supplemental provision needs to be made to complete the legislative jigsaw. I suggest to your Lordships that it would be regrettable in the extreme and would be hardly understood if the smooth working of local government were seen to be held up because of some minor point which had not been foreseen but for which a practical solution had plainly to be put in place. It is for that kind of matter that this power in Clause 52 has been provided. It is against that background that the whole matter has to be considered.

I stress to your Lordships that there are many precedents for a power of this kind being included in legislation. The scrutiny committee recognised that. Powers of this kind have been included in legislation on local government at least as far back as the Acts of 1929 and 1958. Similar powers are also to be found in Section 9(8) of the National Health Service Act 1946. These powers have always been used in the narrow way in which I have explained them. Indeed, despite our best researches, it has been found difficult to find specific examples of uses of the power which can be clearly said to be, for example, supplemental as such. That is because the powers are invariably taken together in their modern formulation of incidental, consequential, transitional and supplemental. What might be envisaged as "supplemental" would be the possibility of a requirement for some kind of public notice to be deposited at the district council's principal office under the Act; but with the advent of areas which are larger than existing districts, it might be appropriate to introduce a supplemental requirement for such a notice also to be deposited at local offices within a new area. That is the kind of thing we have in mind.

The final matter is to have regard to the legal position. This is an important point. The vires of the provision are drawn very narrowly. Judges have stressed the ancillary nature of the provision. The late Lord Dilhorne, in a speech in the Judicial Committee of your Lordships' House, in the case of Daymond v. the South West Water Authority, said that, supplemental means something added to what is in the Act to fill in details of machinery for which the Act itself does not provide".

Lord Simon of Glaisdale

My Lords, perhaps the noble and learned Lord will allow me to intervene as he raises a legal point. It is true that when a word appears in an Act of Parliament it falls for determination by judicial decision, and Lord Dilhorne expressed himself on the occasion that the noble and learned Lord cites. But it is utterly different when the words appear in a statutory instrument. It is that with which we are concerned. If the word "supplemental" were used as authority for a wide-ranging, to use the department's own expression, exercise of power in a statutory instrument, the courts could not intervene because the instrument would have been passed by Parliament and intervention would infringe Article 9 of the Bill of Rights. I hope that the noble and learned Lord will at least agree with that.

Lord Rodger of Earlsferry

My Lords, I very much regret that I cannot agree, partly because I think that the noble and learned Lord has not given the full context within which Lord Dilhorne was speaking. He was speaking about the scope of the power to make a supplemental order. The words did not come within the terms of an order but the words being construed were the words of a statute which gave a power. Lord Dilhorne was saying that supplemental means something, added to what is in the Act to fill in details of machinery for which the Act itself does not provide— supplementary in the sense that it is required to implement what was in the Act". It was in that sense that Lord Dilhorne was speaking.

That statement of law has been cited and followed in a number of subsequent cases. It follows that the power in Clause 52(1)— the controlling part of Clause 52— can be exercised only within strict limits. If the Secretary of State strayed beyond them, any resulting order, whether or not passed by Parliament, would be ultra vires and could be struck down by the High Court in appropriate proceedings.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord still has not explained how that is compatible with Article 9 of the Bill of Rights.

Lord Rodger of Earlsferry

My Lords, it is perfectly compatible with Article 9 of the Bill of Rights to decide whether or not the exercise of a particular power has been ultra vires or intra vires. I add that I am for my part happy to give the House an undertaking that the Secretary of State will use his powers to make supplemental provisions only as envisaged by Lord Dilhorne in that speech; that is, to fill in details of machinery for which the Act does not provide.

Lord Hooson

My Lords, perhaps I may ask the noble and learned Lord one question. What would the Secretary of State lose by accepting the amendment?

Lord Rodger of Earlsferry

My Lords, the amendment would subject all orders under Clause 52(1) to the provisions of the affirmative resolution procedure. It would seem to me that that procedure, which is valuable in its appropriate sphere, is not thought to be appropriate for the kinds of matters which here are simply defined as incidental, consequential, transitional or supplemental. If the House were to go down the route of saying that all these orders had to be subject to the affirmative resolution, your Lordships would face the prospect of having all kinds of minor and trivial orders, perhaps dealing with the transfer of a single piece of property, subjected to the whole machinery of the affirmative procedure. I cannot believe that your Lordships would think that that was the best use of the time of the House or that it would be appropriate.

The Government have recognised that in other areas the affirmative resolution procedure is appropriate. We say that it would not be appropriate to introduce that procedure for the kinds of orders which are envisaged in Clause 52. While I accept that to some extent the blame for this matter lies with the memorandum which was submitted to the committee, nonetheless I hope that, with the fuller explanation which I have been able to give to your Lordships and because of the respect in which the Committee is held, among other things, the noble Lord will feel able to withdraw his amendment.

Lord Williams of Elvel

My Lords, before the noble and learned Lord sits down, can he concentrate for a moment on Clause 52(1) (b) which deals with the Secretary of State being able to make provisions, in consequence of such of the provisions of any other Act passed in the same Session as this Act as apply to any area or authority affected by this Act"? I am asking the question for information purposes. Does that provision give the Secretary of State power if, for instance, the Police and Magistrates' Courts Bill comes out at the end of the parliamentary sausage machine with a different area of authorities for the police? Does that give power to the Secretary of State to change the boundaries of the principal councils?

Lord Rodger of Earlsferry

My Lords, I shall have to take away that precise question. But the general position is that it can only be something which was consequential, transitional or supplementary in the sense in which I have given it. It is certainly the case that where there was such a consequential change to be made in the light of the police Act Clause 52(1) (b) would provide the authority for it. I do not think that it will provide the authority which the noble Lord envisages. It seems to me that that would fall beyond the scope which he has in mind. I would prefer to write to him on the question.

Lord Williams of Elvel

My Lords, I am grateful to the noble and learned Lord. I am sure that he recognises that this is a point of some substance. It is not my intention to divide the House at this hour. We have to read very carefully what the noble and learned Lord has said. However, I must tell him that I regard the opinions of the scrutiny committee of your Lordships' House as being of the highest importance. Whether or not it was misled by the memorandum from the Welsh Office which was couched— to use the noble and learned Lord's words— "in inappropriate language" (in other words, it means it was a duff memorandum) I do not know. We shall have to see. I would like to consult with the chairman of the scrutiny committee to see what he thought about it.

I wish to assure the noble and learned Lord that I and my colleagues on these Benches will read what he has said in great detail. But I shall be tabling a similar amendment at Third Reading to allow your Lordships to take a considered view because I do not believe that a second report from the scrutiny committee should just be cast aside without your Lordships having an opportunity to take a view. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.85C not moved.]

[Amendment No.86 not moved.]

8.45 p.m.

Lord Simon of Glaisdale moved Amendment No.87: Page 46, line 20, leave out ("consequential or transitional") and insert ("or consequential").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendments Nos.86,88 and 89. But the two latter amendments raise quite different points. With your Lordships' permission, I shall speak to Amendment No.87 separately because it raises a point of very great constitutional importance.

The purpose and effect of the amendment is to remove the word "transitional" from the subsection which the noble Lord, Lord Williams of Elvel, has read. In effect, it is a probing amendment and as such desirably it should have been moved in Committee. It was not because the point has arisen since the Committee stage of the Bill. I have given the noble and learned Lord notice of the point I am going to raise. To some extent it overlaps what we discussed as regards the previous amendment of the noble Lord, Lord Williams of Elvel.

I say this because it affects this amendment as well as the other: to some extent I suppose that the noble and learned Lord the Lord Advocate and I were speaking in legal code. I mentioned Article 9 of the Bill of Rights when I questioned whether the courts could possibly say that a statutory instrument which had been passed by both Houses of Parliament was ultra vires. As your Lordships know, that very famous article declares that proceedings in Parliament shall not be questioned out of Parliament. That meant primarily at that time and today questioning courts of law.

That overlaps the matter of "transitional". In relation to the last amendment and this, your Lordships are concerned with the age-long tension between Parliament and the Executive as to who shall legislate. It goes back to the Statute of Proclamation under Henry VIII, hence we talk still of the Henry VIII clause. It was the staple of constitutional conflict under the Stuarts and was finally resolved for a long time at what we still call the Glorious Revolution— "glorious" because it established the right of Parliament to legislate as against the pretensions of the Stuart kings to legislate by proclamation or other edict or order. So that is the background— the tension between Parliament and the Executive as to who is to legislate.

This particular matter arose specifically in relation to regulations made under the Child Support Act. Before that perhaps I may quote generally from a very able statement in a research paper in the Library of the other place on the deregulation Bill: there continues to be concern expressed at the volume and nature of delegated legislation". Then an example is given in a special report of the Joint Committee on Statutory Instruments. It goes on to say: In a letter to the Leaders of both Houses the chairman of the committee"— a very highly regarded chairman— said that 'instead of simply implementing the "nuts and bolts" of Government policy, statutory instruments have increasingly been used to change policy, sometimes in ways that were not envisaged when the enabling primary legislation was passed—. I ask your Lordships to bear in mind particularly that passage.

The matter arose in the following way under the Child Support Act. What that Act did was to remove the power to adjudicate on child maintenance from magistrates' courts. They had previously exercised that function in conjunction with their power to adjudicate on wife maintenance, taking account of local conditions and the infinite complexity of situations where there were two families to support. That jurisdiction was vested in officials who applied a formula which nobody claimed to understand.

As your Lordships know, when that Act came into force the application of the formula by officials of the Child Support Agency raised a storm of protest. Members of the other place said that the volume of the correspondence they received was the biggest since the poll tax. Two situations arose. The first was where the Act had already had an impact; that is, where officers had applied the formula and made an assessment. The other situation was where an assessment had not yet been made. When the child support regulations were brought in to modify and render less harsh that body of assessment, they operated purportively under the word "transitional". They used that word not only in relation to those cases that had not yet been assessed— in other words, where the liability had not attached under statute — but also in relation to the reopening of cases where assessments had been made and attached and a liability had arisen under an Act of Parliament.

In effect, by use of the word "transitional" to justify the latter, the Department of Social Security claimed retrospectively to alter the impact of an Act of Parliament. Naturally, the Joint Select Committee on Statutory Instruments drew the attention of both Houses to that matter. It said that the power being exercised was unusual and that in effect it was unprecedented and unexpected. On the department's own case, it was unexpected. The department was claiming that if it had realised the mistakes that it was making in the Act, it would not have made them and that they could be put right in the provisions of transitional regulations.

That was such a startling departure from constitutional usage that in my submission your Lordships would have been justified in throwing out the regulations condignly. Your Lordships did not do that for two reasons: first, because of what I called the weak convention whereby your Lordships did not vote against a statutory instrument. More potent was the fact that the regulations were needed. We did not consider that they went far enough but they mitigated to some degree the harshness of what had been done under the Child Support Act— an Act which had been heavily criticised in your Lordships' House. Your Lordships accordingly allowed the use of the word "transitional", but notice was given that the matter would be raised before the Procedure Committee and in proceedings in this Bill where it was noted that the word "transitional" appeared.

Therefore, we look to the noble and learned Lord to assure us, we hope, that notwithstanding love of precedents and a willingness to use any precedent for the enlargement of executive power, the word "transitional" here and elsewhere will not be used retrospectively to alter the impact of an Act of Parliament on the ground that a mistake has been made in the Act and that if it had been recognised at the time it would not have been made.

Lord Rodger of Earlsferry

My Lords, I believe I can assure your Lordships that the Government have no intention to do anything under the heading of "transitional" other than that which is necessary as a direct consequence of the need to provide for the transition of functions, property, duties and so on from the abolished councils to the new successor bodies. The Government are fully conscious of the views of the Joint Select Committee on Statutory Instruments in this respect as those views were expressed in the context of the draft child support regulations. Whatever the precedent may be in this matter, it is solely intended to use the power here in the way that I have indicated.

Lord Simon of Glaisdale

My Lords, I am much obliged to the noble and learned Lord. I noted that he did not specifically say that the word "transitional" would not be used in the way it was used in the Child Support Act. Obviously a Division at this hour would be of no avail. The matter will have to go to the Procedure Committee. At least we have had some assurance from the noble and learned Lord. I cannot pretend that the situation is satisfactory, but I am grateful to the noble and learned Lord for having gone as far as he has. As to the remainder, that must rest with the Procedure Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No.88: Page 46, leave out lines 22 to 24.

The noble and learned Lord said: My Lords, Amendments Nos. 88 and 89 seek to remove from the Bill two unnecessary provisions. What I and the noble and learned Lord said earlier apply to some extent to these provisions. Amendment No. 88 applies to regulations or orders and states that the Secretary of State may: make different provision for different cases or classes of case or for different localities". Amendment No. 89 removes subsection (6) (a), which is similar as regards directions.

I assume that the object of those provisions is to obviate the argument that the Secretary of State is bound to make exactly the same direction or regulation; however different the circumstance or the locality, he must make only one kind of regulation. I ask again whether the noble and learned Lord believes that such an argument is likely to be received as a reasonable proposition by any reasonable court.

On the previous occasion the noble and learned Lord said that even though no reasonable court could accept such an argument, the provision was desired to prevent such an argument being put forward. I imagine that he will say something of the kind today. However, on that argument there is no limit to the inflation of our statute book. I ask specifically whether the Government have any care that the statute book has been extended in mass in the way that I have mentioned and that an annual set costs little less than £ 350. Does that mean nothing to a government who at any rate talk about inflation?

Of course, the situation is much worse. It means that the statute book is a mass of empty verbiage, logorrhea. Obviously, any bright young man going into the draftsman's office can think of a fanciful argument and might be put off. If he is remonstrated with he can say, "The noble and learned Lord the Lord Advocate said that it does not matter how absurd it is, we must prevent it being put forward". There will be no answer to that, and obviously there has been no answer in similar circumstances.

Nonsense literature is a valuable genre in our culture but there is no reason to carry it so far into the statute book. I beg to move.

9 p.m.

Lord Rodger of Earlsferry

My Lords, I have an uncanny feeling that what I am about to say may not entirely satisfy the noble and learned Lord, Lord Simon. I believe that the provision serves a useful purpose. It makes clear that a power to make a particular set of regulations or a direction— albeit that the regulations emanate from only one exercise of the power— can nonetheless manifest itself in different provisions applying to different classes of case or different localities.

I am aware of circumstances in which comfort has been taken from the existence of those words when the drawing up of regulations or the use of a direction has been in question. These particular words make clear an issue which would otherwise be unclear. They are well precedented, as the noble and learned Lord knows, and they serve a useful purpose. Of course the Government are concerned about the growth of the statute book and they are concerned not to include unnecessary provisions. However, these particular provisions are necessary.

Lord Hooson

My Lords, obviously, the noble and learned Lord, Lord Simon, has raised important procedural and constitutional points, as has the noble Lord, Lord Williams of Elvel. The Commons Committee will be alerted to your Lordships' concern about these matters. When the Bill has passed through the Commons and returned to this House— it is unusual to introduce a Bill of this kind into this House— will we have an opportunity to consider these points again?

Lord Williams of Elvel

My Lords, it is only if amendments are made to the Bill in the Commons that those Commons Amendments can be considered by this House.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord said truly that the object is that the Secretary of State in one set of regulations can provide differently for different localities and for different cases and classes of case. So far, he will receive the enthusiastic acclamation of the whole House. No one would dispute that.

Where we venture to differ is when he says that that is necessary. Of course, the Secretary of State can do just that without being told that that is what he can do. The alternative is to say that he is acting unreasonably unless he has exactly the same regulations, whatever the difference in locality, case or class of case. But we shall not get very far with that.

One can only hope that by going on and on, the statute book may, in the end, shrink a little; that its more outrageous nonsense will be dropped; and probably that will happen only when there is a revolt by the purchasers of the statute book. Unfortunately, the main consumers are government departments which readily condone each other's excesses. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.89 not moved.]

Schedule 14 [Minor and Consequential Amendments of the 1972 Act]:

Lord Rodger of Earlsferry moved Amendment No.89A: Page 108, line 43, at end insert: ("(2) Before section 54(2) insert— (1B) Where the Welsh Commission make proposals for the constitution of a new principal area, those proposals shall specify whether the new area should be a county or a county borough.").

The noble and learned Lord said: My Lords, Section 54(1) of the 1972 Act provides, among other things, for the Local Government Boundary Commission for Wales to submit proposals for the creation of a new local government area.

The amendment is consequential upon the changes in nomenclature of the local authorities in Wales. If the commission uses its existing powers, it requires it, when submitting proposals—

Lord Williams of Elvel

My Lords, is the noble and learned Lord speaking also to Amendments Nos.90A,91A and 92?

Lord Rodger of Earlsferry

My Lords, no. I am speaking only to Amendment No.89A. It requires the commission, when submitting proposals for the creation of a new principal area, to specify whether the new area should be a county or a county borough. I beg to move.

On Question, amendment agreed to.

Viscount St. Davids moved Amendment No.90: Page 113, line 5, at end insert: (". In section 187(3) (notices deterring public use of footpaths) after "district council" insert "or, where they are not the highway authority, a Welsh principal council". In section 189(3) (town and village greens etc.)—

  1. (a) in paragraph (c), after "district" insert "or Welsh principal area"; and
  2. (b) in the words following that paragraph, after "district" insert "or (as the case may be) area".
In section 191 (ordnance survey)—
  1. (a) in subsection (2), after "district council" insert "(or, in Wales, a principal council)";
  2. (b) in subsection (4) (a), after "require" insert "(or, in Wales, the principal council)";
  3. (c) in subsection (4) (b), after "require" insert "(or, in Wales, the principal council)"; and
  4. (d) in subsection (5), after "any" insert "preserved county
 In section 195 (social services)—
  1. (a) in subsection (2) after first "county" insert "in England"; and
  2. (b) in subsection (3) omit "as amended by subsection (1) above".
 . —(1) Section 204 (licensing) is amended as follows.
  1. (2) In subsection (1)—
    1. (a) for "districts" substitute "principal areas";
    2. (b) for "district" substitute, in both places,"area";
    3. (c) for "areas in which" substitute "localities in which"; and
    4. (d) for "April 1,1974" substitute "1st April 1996".
  2. (3) In subsection (2), after "shall" insert "(except in relation to Wales)".
  3. (4) In subsection (3), after "council" insert "or, in Wales, of the principal council".
 . Omit section 207 (public libraries and museums in Wales). . In section 213(1) (local licence duties), omit "and Wales" and at the end add "and, in Wales, be vested in the principal councils". . In section 214(1) (cemeteries and crematoria) after "councils of insert "Welsh counties, county boroughs". . —
  1. (1) Section 215 (maintenance of closed churchyard) is amended as follows.
  2. (2) In subsection (2) (c) for "district" substitute "county or county borough".
  3. (3) In subsection (3)—
    1. (a) for first "district" substitute "district, Welsh county or (as the case may be) county borough"; and
    2. (b) for "of the district" substitute "to whom the notice is given".").

The noble Viscount said: My Lords, in speaking to this amendment, I shall speak also to Amendments Nos.90A,91A and 92. These are further and minor consequential amendments to the Local Government Act 1972 to take account of the new local government structure and nomenclature in Wales. I beg to move.

On Question, amendment agreed to.

Viscount St. Davids moved Amendment No.90A: Page 113, line 31, at end insert: (". —

  1. (1) Section 246 (powers, privileges and rights in relation to former cities and boroughs) is amended as follows.
  2. (2) After subsection (2) insert—
    1. "(2A) Any powers to appoint local officers of dignity exercisable immediately before 1st April 1996 in relation to 901 any area by the council of a district in Wales by virtue of a charter granted under section 245 above shall, on and after that date, be exercisable in relation to that area by the council of the principal area in which, on that date, that area becomes comprised.
    2. (2B) Where on 1st April 1996 that area becomes comprised partly in each of two or more principal areas, those powers shall be exercised on and after that date by such of the councils of those principal areas as may be agreed between them, or, in default of agreement, as the Secretary of State may designate."
  3. (3) In subsection (6), after first "subject to" insert "subsection (2A) above,".
. In section 247 (transfer of armorial bearings from old to new authorities), at the end add— (3) Subsections (1) and (2) above also apply in relation to new principal councils in Wales and authorities which ceased to exist at a result of the Local Government (Wales) Act 1994 but as. if the reference to April 1,1974 were a reference to 1st April 1996. . In section 248 (freemen and inhabitants of pre-1974 boroughs), at the end add— (6) This section shall have effect in relation to Wales as if—
  1. (a) in subsections (2) and (3) the references to the relevant district council were references to the relevant principal council; and
  2. (b) in subsection (2) the reference to the council of the district were a reference to the council of the principal area."
 . In section 249 (honorary aldermen and freemen), after subsection (6) insert— (7) A principal council in Wales may, by such a resolution as is required by subsection (5) above, admit to be honorary freemen of the county or county borough persons of distinction and persons who have, in the opinion of the council, rendered eminent services to the county or county borough. (8) The admission of a person to be an honorary freeman under subsection (7) above shall not confer on him any such rights as are referred to in section 248(4) above. (9) A principal council in Wales shall, in relation to any person on whom they have conferred the title of honorary alderman or whom they have admitted to be an honorary freeman, have the same powers as are conferred by subsection (6) above." ").

On Question, amendment agreed to.

[Amendment No.91 had been withdrawn from the Marshalled List.]

Viscount St. Davids moved Amendments Nos.91A and 92: Page 113, line 44, at end insert: (". In paragraph 20 of Schedule 29 (certificates under Schedule 3 to the Gas Act 1965), after sub-paragraph (2) insert— (3) Sub-paragraph (2) above does not apply in relation to Wales." "). Page 113, line 44, at end insert: (". In paragraph 28 of Schedule 14 (consent of highway authority required in connection with functions relating to clocks, drinking fountains etc.) after "district council" insert "or, where they are not the highway authority, the council of a Welsh principal area". . In paragraph 55 of Schedule 16 (applications for certificates of appropriate alternative development)—

  1. (a) in sub-paragraph (1), for "Elsewhere" substitute "In England, elsewhere"; and
  2. (b) in sub-paragraph (2), after "National Park" insert "in England but".").

On Question, amendments agreed to.

Schedule 15 [Other Consequential Amendments]:

Viscount St. Davids moved Amendments Nos.93 to 98: Page 114, line 11, at end insert: ("The Finance Act 1908 (c.16) In section 6 of the Finance Act 1908 (collection by local authorities of duties on game licences)—

  1. (a) in subsection (1), omit "and Wales" and at the end add "and in Wales be vested in the councils of counties and county boroughs"; and
  2. (b) in subsection (2), omit "district" and after "1st April 1974" add "or, in relation to Wales, to a council having power to levy those duties after 1st April 1996".").
Page 114, line 22, at end insert: ("The Education Act 1944 (c.31) In section 54 of the Education Act 1944 (power to ensure cleanliness), at the end add— (9) Subsection (4) above has effect in relation to Wales as if the words from "and where" to the end were omitted. Page 115, line 30, at end insert: ("The Public Libraries and Museums Act 1964 (c.75) .— (1) Omit the following provisions from the Public Libraries and Museums Act 1964—
  1. (a) in section 4 (library authorities and areas), from " (a)" to "(b)", in subsection (2);
  2. (b) in section 5 (joint boards), the proviso in subsection (3);
  3. (c) section 6 (special provisions as to Welsh districts);
  4. (d) in section 11 (supplemental provisions as to transfers of officers, assets and liabilities), in subsection (2;, the words from "or (b)" to "library authority".
 (2) In section 4 of that Act, at the end add— (— local authority", in relation to Wales, means a county council or county borough council; "."). Page 120, line 10, at end insert: ("The Education Reform Act 1988 (c.40) In section 235 of the Education Reform Act 1988 (interpretation), in subsection (1), in the definition of "local authority", after "county council," insert "a county borough council,".") Page 120, line 36, at end insert: ("The Social Security Contributions and Benefits Act 1992 (c.4) In section 58 of the Social Security Contributions and Benefits Act 1992 (incapacity for work: work as councillor to be disregarded), in subsection (4) (a), after "county" insert "or county borough". The Social Security Administration Act 1992 (c.5) In section 191 of the Social Security Administration Act 1992 (interpretation), in the definition of "local authority", in paragraph (a), omit "and Wales" and after "Scilly; " insert— (aa) in relation to Wales, the council of a county or county borough; ". The Further and Higher Education Act 1992 (c.13) In section 90 of the Further and Higher Education Act 1992 (interpretation), in subsection (1), in the definition of "local authority", after "county council," insert "a county borough council,"."). Page 121, line 10, at end insert: ("The Education Act 1993 (c.35) .— (1)In section 166 of the Education Act 1993 (duty of District Health Authority or local authority to help local education authority), in subsection (5), after "county council," insert "a county borough council,". (2) In section 305 of that Act (interpretation), in subsection (1), in the definition of "local authority", after "county council," insert "a county borough council,".").

The noble Viscount said: My Lords, in moving this amendment, I shall also move Amendments Nos.94 to 98 en bloc. Schedule 15 makes further consequential amendments to legislation on account of the new system of local government in Wales. The amendments amend eight Acts of Parliament to provide references to the new unitary authorities. The amendments relate solely to the transfer of county and district functions to the new councils. I beg to move.

On Question, amendments agreed to.

Schedule 16 [Savings and Transitional Provisions]:

Lord Rodger of Earlsferry moved Amendments Nos.98A to 99A: Page 121, line 25, at end insert: ("Former cities and boroughs-privileges and rights of inhabitants Any privileges or rights belonging immediately before 1st April 1996 to the inhabitants of any area in Wales by virtue of—

  1. (a) section 246(1) of the 1972 Act (saving for privileges and rights of citizens and burgesses); or
  2. (b) any provision made under subsection (2) (b) of that section by a charter granted under section 245 of the 1972 Act (grant of borough status);
shall belong on and after that date to the inhabitants of that area."). Page 121, line 25, at end insert: ("Honorary aldermen and freemen Any person who, immediately before 1st April 1996, is an honorary alderman by reference to his past membership of an old authority—
  1. (a) shall continue to have that status even though the old authority has ceased to exist as a result of this Act; but
  2. (b) shall not, while serving as a councillor of any new principal council in Wales, be entitled to be addressed as alderman or to attend or take part in any civic ceremonies of that council as an alderman.").
 Page 126, line 15, at end insert: ("Freemen and aldermen .— (1) Nothing in this Act shall be taken to affect any person's status as a freeman or honorary freeman, or the right of any person to be admitted as a freeman of any place. (2) Services rendered to an old authority, the area of which becomes wholly or partly included in a new principal area, shall be treated for the purposes of section 249 of the 1972 Act (honorary aldermen and freemen) as services rendered to the council of the new principal area.").

The noble and learned Lord said: My Lords, in moving Amendment No.98A, I shall speak also to Amendments Nos.99 and 99A. The amendment will preserve the status of existing freemen and aldermen. Amendment No.99A allows service rendered to an old authority to be treated as service rendered to a new authority for the purpose of deciding whether eminent services have been rendered. That is relevant when a council is considering whether to award the status of alderman to an individual. I beg to move.

On Question, amendments agreed to.

Schedule 17 [Repeals]:

Viscount St. Davids moved Amendments Nos.100 to 107: Page 126, line 31, at end insert:

("8 Edw.7. c.16. Finance Act 1908. In section 6, in subsec-tion (1) the words "and Wales" and in subsection (2) the word "district".").
Page 126, line 33, at end insert:
("1944 c.31. Education Act 1944. In section 114(1), in the definition of "minor authority", in para-graph (b), the words "is a community having no community council or" and, in paragraph (c) (iii), the words "which is a community having no community council or".").
Page 126, line 36, at end insert:
("1958 c.33. Disabled Persons (Employment) Act 1958. In section 3(5), the words "or Wales".").
Page 126, line 44, at end insert:
("1964 c.75. Public Libraries and Museums Act 1964. In section 4(2), the words from "-(a)" to "(be)". In section 5(3), the proviso. Section 6. In section 11 (2), the words from "or (b)" to "library authority".").
Page 126, line 46, at end insert:
("1970 c.44. Chronically Sick and Disabled Persons Act 1970. In section 21(8), the words "or Wales".")
Page 127, line 38, column 3, at end insert:
("In section 195(3), the words "as amended by subsection (1) above". Section 200. Section 207. In section 213(1), the words "and Wales".").
Page 129, line 29, at end insert:
("1989 c.41. Children Act 1989. In section 105(1), in the definition of "local authority", the words "and Wales".").
Page 130, line 26, at end insert:
("1992 c.5. Social Security Administration Act 1992. In section 191, in the definition of "local authority", the words "and Wales".").

The noble Viscount said: My Lords, I shall move Amendments Nos.100 to 107 en bloc. Schedule 17 sets out repeals to certain enactments which would be spent as a consequence of the new local government system in Wales. They are consequential on the provisions of the Bill and in particular the additional consequential amendments to Schedule 15. I beg to move.

Lord Williams of Elvel

My Lords, I may be mistaken, but in Amendment No.103 at the end of the first line of the rubric there appears to be a curious dash in front of the bracket surrounding the letter "a"; for example, the line reads,"-(a)". Can the noble Lord clarify whether the dash is meant to be there or whether it is a misprint?

Viscount St. Davids

My Lords, the noble Lord has made a good point. It seems that the dash may not need to be there.

On Question, amendments agreed to.