Lords Sitting of 20 January 1994

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.

The Disabled: Unemployment Figures
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What was the rate of unemployment among disabled people at the latest date for which figures are available.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): My Lords, the latest available labour force survey estimates for summer 1993 show that in Great Britain the International Labour Organisation unemployment rate among people with health problems or disabilities which limit the kind of paid work they can do was 22 per cent. This figure has not been seasonally adjusted.
Lord Dormand of Easington: My Lords, is the Minister aware that there has been no reduction in the percentage since the Government came to power 14 years ago? Not only have they done little about the failure of the quota system, but also they have done nothing to dispel the myths which cause so much difficulty to disabled people. There is the myth in particular, that disabled people are less productive in their work and have poor sickness records. Is it not now clear that the Government's policy, stated many times, of education and persuasion is totally inadequate and there is an urgent need for legislation to protect disabled people from discrimination?
Lord Henley: My Lords, the figures I gave were for those who had health problems or were disabled and therefore they do not precisely answer the noble Lord's Question. I have to say that the figure therefore should be treated with caution. Nevertheless, I would accept that unemployment rates for people with disabilities are consistently higher than for the population as a whole and possibly seem to fluctuate somewhat less than other unemployment figures.
For this reason, the Government and the employment service devote considerable efforts to assist people with disabilities. Perhaps I may give one example. In the last year, 40,370 unemployed people with disabilities were placed into a job by the employment service in the year to 31st March 1993. That was about 8,000 more than the previous year.
As regards taking these matters further and bringing in anti-discrimination legislation, I have to say to the noble Lord that I am not convinced of the need for anti-discrimination legislation in the employment field for people with disabilities. I do not believe that the issue is the same, say, as for race or sex. I believe that there could be major problems with definition and that
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the right way forward is to continue with what we are doing, to continue those policies and with what is already in place, to continue with access to work, as has been announced, and to continue our own policy of education and persuasion.
Lord Renton: My Lords, do the figures which my noble friend has given refer to the mentally handicapped or those for whom people insist on using the misleading expression "with learning difficulties"? Is he aware that many people with mental handicap are capable of doing simple manual jobs as well as anyone else can do them? Can my noble friend assure us that that factor is borne in mind by the employment agencies?
Lord Henley: My Lords, I believe that the figures include the class of people to whom my noble friend refers. As I said, I believe that the figures have to be treated with caution, they come from the labour force survey and are therefore a response to questions asked of a fairly large number of people who were surveyed. But I agree with the subsequent point made by my noble friend that a lot of people with what might be termed learning difficulties are capable of doing a large number of jobs.
Lord Mason of Barnsley: My Lords, the Minister will remember that on Monday he informed the House that instead of industry arid business taking up their 3 per cent. quota of disabled persons, they have taken up 1.5 per cent. What does that mean in numbers? How many disabled persons have been employed? Further, what recommendations is his department making to business and industry to achieve the 3 per cent. take up?
Lord Henley: My Lords, as regards the quota, the problem with it is that it asks people employing more than 20 to ensure that 3 per cent. are registered disabled. The problem is that there are not enough registered disabled people to go round. I can say that as regards the future of the quota, the whole question of its future was raised in our 1990 consultative document. The responses were inconclusive and we decided to keep the quota but keep the position under review. That remains the case and while it remains in force we shall certainly continue to use it as part of our efforts to educate and persuade.
Perhaps I may add slightly to that, in case my earlier answer was misinterpreted. What I meant was that there are a large number of disabled people, but a great many choose for their own reasons not to register. Therefore there are not enough registered disabled people to meet the 3 per cent. quota. I can confirm that my own department, the Department of Employment, meets the 3 per cent. target.
Baroness Turner of Camden: My Lords, in view of what the Minister said about the very high level of people with disabilities who are unemployed compared with the general population, will the Government reconsider the situation under the Statutory Sick Pay Bill and give support to any amendment that our side produces in order to give special protection to the disabled in that context?
Lord Henley: My Lords, I am sure that the noble Baroness will be quite happy to wait for the Committee stage of the Statutory Sick Pay Bill, when she can put her points forward.
Lord Molloy: My Lords, the Minister is no doubt aware that for many years I have been involved with a few disabled organisations. Are the Government also maintaining a liaison with such disablement organisations, which value very much indeed being in contact with the department?
Lord Henley: My Lords, the noble Lord makes a very good point. I believe that dialogue with all organisations of and for disabled people is very important. I can inform the noble Lord that we have within the department a national advisory council for the employment of people with disabilities, and we listen very carefully to the advice that it gives us. Certainly, we are always prepared to speak to and meet with any organisations either of or for disabled people.
Lord Glenamara: My Lords, does the Minister agree that disabled people have to be properly trained for employment? Will the Government ensure that the four colleges which exist for training disabled people are not under-funded? Is he aware that the changes which the Government have made mean that they now have an extremely difficult time making ends meet? If the noble Lord would like to visit one of those colleges, not too far from where he lives, I would be very pleased to arrange such a visit.
Lord Henley: My Lords, on that latter suggestion I would certainly be prepared to take up the noble Lord's offer. I believe that I am to visit another of the colleges at some point later in the year. I can assure the noble Lord that we very much value the work that they do. I can also assure him that all unemployed disabled people have priority for a place on every main employment and training programme for which they are either suitable or eligible.
Baroness Fisher of Rednal: My Lords, when talking about disabled people, will the Minister consider the blind, who are not normally included among those whom we describe as disabled? Is he aware that the advanced training that blind people now receive through colleges, and the very good mobility training that they receive, makes such people very easy to put into employment?
Lord Henley: My Lords, I can assure the noble Baroness that we do not ignore the blind. They are certainly included among those who are defined as disabled. I can also assure her that I quite recently met with two organisations which represent blind interests, and I shall continue to take on board any particular suggestions that they would like to make.
Lord Dormand of Easington: My Lords, is the Minister aware of how very disappointing all his replies have been to this Question? To say that we shall carry on as we do now, which is what he did say, shows a complacency which is quite breathtaking, particularly in view of the figures that he has given. Will he say more
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precisely why the Government are so opposed to legislation? He and his department must know what is happening in Germany, in France, and particularly in the United States of America, where by any standard the legislation is very effective indeed.
Lord Henley: My Lords, first, I reject the noble Lord's allegations of complacency. I have tried to make clear that the Government believe that they are doing a good job, and will continue to improve and enhance what is being done. We will also look, as colleagues in my department have done, at all the experiments in other countries with their different forms of legislation, and learn where possible from those. But I stick to what I said earlier on anti-discrimination legislation. We are not convinced that it is the right way forward.

Interest Rates
3.15 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
Whether they will now ensure a further reduction in interest rates.
Lord Henley: My Lords, interest rates will continue to be set so as to meet the Government's objectives for low inflation and sustainable economic growth.
Lord Jay: My Lords, since the modest recovery that we have had so far was mainly due to the previous fall in the sterling exchange rate, which has now been substantially reversed, and since heavily increased taxes are due to be imposed on consumers in the coming spring, is there not a real risk of a further downturn in the economy later this year unless some new stimulus is given very soon?
Lord Henley: My Lords, as my right honourable friend the Chancellor of the Exchequer made very clear this morning, tax increases are necessary to make sure that the recovery is sustainable. We cannot go on borrowing at the rate at which we have been borrowing. That would be an even bigger threat to the recovery. As my right honourable friend the Chancellor of the Exchequer made clear in the Budget:
"my decisions on interest rates will be based on a careful assessment of monetary conditions and inflationary trends, focusing particularly upon the growth of narrow and broad money, changes in the exchange rate and movements in asset prices".—[Official Report, Commons, 30/11/93; col. 920.]
My right honourable friend will continue to bear all those points in mind and will keep the matter under constant consideration.
Lord Ezra: My Lords, are the Government concerned about the recently published report of the chambers of commerce which states that in their opinion the recovery is faltering? As the impact of the further taxes to which the noble Lord, Lord Jay, referred comes into effect, is it not virtually certain that there will be some downturn compared with the previous expectations? If the Government will not use the interest rate mechanism, what other measures do they have for stimulating the economy?
Lord Henley: My Lords, I am slightly surprised by the rather gloomy reception that the British Chamber of Commerce gave to their own survey. After all, it shows that business confidence on turnover is at its highest level since early 1989. It further shows significant rises in export deliveries, orders and balances for manufacturing firms in the fourth quarter of 1993. It also shows that every region is reporting growth in sales and orders in both the manufacturing and service sectors. I also notice that the BCC did not ask for a reduction in interest rates; nor did the noble Lord's right honourable friend.
Lord Tugendhat: My Lords, does my noble friend agree that the timing of any change in interest rates at this stage ought to be left to the Governor of the Bank of England? Will he bear in mind what the Chancellor of the Exchequer said on the occasion of the last change in interest rates? Will he further agree that this is a matter that should be approached with some caution at the present time? Taking all the survey evidence into account, the recovery appears to be continuing to make progress. Until we know a little more about what the effects of the tax increases will be on the recovery, it might be better to be a little cautious.
Lord Henley: My Lords, my noble friend is absolutely right to stress caution, and I would not be prepared to speculate on any future movement. My right honourable friend made quite clear what factors he would take into account in making his decision. As regards timing, my right honourable friend made it quite clear that the precise details of timing would be left to the Bank of England.
Lord Stoddart of Swindon: My Lords, can we be sure that at the present time the Chancellor has no secret agenda for shadowing the deutschmark and has in mind a particular parity rate for the pound? Does the Minister agree that that would be quite a disastrous course to follow, as the noble Lord, Lord Lawson, found when he was Chancellor of the Exchequer? He did exactly the same and brought about the recession, which hopefully we are slowly climbing out of.
Lord Henley: My Lords, I can assure the noble Lord that my right honourable friend has no secret agenda. I can further assure him that there is now much greater openness in these matters. We now publish a monthly monetary report containing key data on monetary conditions and detailed explanations of interest rate changes.
Lord Boardman: My Lords, would my noble friend confirm that responsibility for any change in the interest rate will remain with the Chancellor of the Exchequer, who has responsibility for overall economic policy, and will not be delegated to the Governor of the Bank of England, who is primarily responsible for monetary policy?
Lord Henley: My Lords, as my right honourable friend made quite clear, the responsibility for changes will remain with him. It is only on the precise details of timing where the responsibility will be a matter for the Governor of the Bank of England.
Lord Eatwell: My Lords, does the noble Lord agree that, given the savage increases in income taxation which are to be imposed in April, together with increases in value added tax, a cut in interest rates is necessary if there is not to be a significant reduction in the living standards of the British people?
Lord Henley: My Lords, I have given precise details of the factors that my right honourable friend will take into account if and when he chooses to make changes in the interest rates. As I said earlier, tax increases are necessary to make sure that the recovery is sustainable over the medium term.
Lord Eatwell: My Lords, can the noble Lord say whether the withdrawal of spending power from the economy by tax increases aids the recovery or harms the recovery?
Lord Henley: My Lords, all that my right honourable friend said when he spoke on the: radio this morning was that it would check it but the recovery is now strong enough not to be stopped.
Lord Whaddon: My Lords, is the noble Lord aware that the continued erosion of manufacturing industry capacity in Britain is deeply worrying and is constantly undermining our ability to cash in on the upturn in Europe when it finally comes? Is he further aware that low interest rates are vital in stimulating fixed investment? Will he ensure that that factor takes a high priority in government thinking?
Lord Henley: My Lords, we do have low interest rates but we also forecast a healthy growth of around 2½ per cent. this year, which will be the fastest of all the major European economies. That is after taking into account any tax increases.
Lord Jay: My Lords, is the Minister aware that I was not suggesting that we should increase our borrowing, but that we should reduce the cost of borrowing in the interests of the Treasury as well as many others?
Lord Henley: My Lords, I note what the noble Lord says. If noble Lords want to spend more money, they will obviously have to increase taxation and borrowing yet further.

Jury Service: Exclusion Groups
3.22 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell asked Her Majesty's Government:
Whether they have reached a conclusion on the recommendation of the Royal Commission on Criminal Justice that practising members of a religious sect or order who find jury service incompatible with their tenets or beliefs should be excused.
The Minister of State, Home Office (Earl Ferrers): My Lords, no conclusion has yet been reached.
Lord Archer of Sandwell: My Lords, leaving aside the merits of tolerating minorities, does the Minister

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believe that it can ever be conducive to justice to include in the jury someone who is reluctant to serve, who believes on principle that he should not be there, who is unhappy about discussing the case with other jurors and whose heart is not in the matter? Can there be any problem in deciding as a fact whether someone belongs sincerely to a group which holds that view?
Earl Ferrers: My Lords, the noble and learned Lord makes a formidable case for that particular point of view, but as yet it is not clear who would be affected. Obviously we have to give this matter careful consideration. So far Her Majesty's Government have received only three representations on the Royal Commission's proposal and we need to be satisfied that those affected have had a proper opportunity to consider the issue. One of the difficulties is to define a religious sect or order and whether or not a person is a practising member of that sect or order.
Lord Morris: My Lords, in view of the fact that jury service is a duty and not a right or privilege, would my noble friend bear in mind when considering this matter that if people are excused on those grounds from doing jury service, they might be asked to suggest in what other way they can possibly serve the nation?
Earl Ferrers: My Lords, that is going rather wider than jury service. Jury service obliges a person to serve on a jury. It does not oblige him to say, "Well, I would rather not, thank you very much, but shall I do something else".
Lord Lester of Herne Hill: My Lords, will the noble Earl bear in mind that the right to freedom of conscience in religion is anchored in Article 9 of the European Convention on Human Rights and that to coerce someone to do service in the interests of the nation against their conscience might well breach that article?
Earl Ferrers: My Lords, that is certainly one of the matters that my right honourable friend will take into account. As I explained earlier to your Lordships in answer to the Question, these matters are being considered but we have not as yet come to a conclusion.
Lord Stallard: My Lords, can the Minister give the House some idea of when the Government are likely to come to a conclusion? Will he bear in mind the fact that when this matter was discussed in another place (in 1988) the Minister said:
"it is important that I put these words on the record—that applications for excusal from jury service based on genuine conscientious scruples should be sensitively and sympathetically considered by the courts".—[Official Report, Commons, 20/6/88; col. 888.]
Since then there has been a report from the Royal Commission. Having discussed various groups that may or may not be excluded, it states:
"On the other hand, where practising members of a religious sect or order find jury service to be incompatible with their tenets or beliefs, that should entitle them to be excused jury service and we recommend accordingly".
That report was published last year. How long does it take to decide on such strong recommendations as those which we already have?
Earl Ferrers: My Lords, the noble Lord asks how much longer my right honourable friend will wish to consider the matter. He will realise that the Royal Commission made 352 recommendations. Of those recommendations 30 have been accepted and resolved. The Government will soon set out in detail our response to the remainder of the Royal Commission's report.

Criminal Injuries Compensation Scheme
3.26 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill asked Her Majesty's Government:
Whether they intend that the proposals on criminal injuries compensation contained in the White Paper Cmnd. 2434 of December 1993, Compensating victims of violent crime, will be subject to parliamentary debate before coming into force.
Earl Ferrers: My Lords, there are at present no plans to do so.
Lord Lester of Herne Hill: My Lords, I am grateful for that reply. Does the noble Earl agree that the White Paper contemplates diluting an existing scheme which puts the victim rather than the criminal first? Does he further agree that to dilute it in that way would be to go back on the existing legislation passed by Parliament in 1988? Does he believe that the issues raised are of such importance that they merit proper parliamentary scrutiny before the prerogative is exercised in that way?
Earl Ferrers: My Lords, I do not believe that it dilutes the scheme at all; nor has any secret been made of the fact that the scheme was to be changed. In fact it may make it a quicker scheme. There will be a set tariff, and on the whole people will be no worse off and some may be better off. Her Majesty's Government announced their intention, in a written Parliamentary Answer, on 23rd November 1992. There was an Adjournment debate on 18th March 1993 and the announcement was made on 15th December 1993. There is no statutory reason for a debate, but if the noble Lord wishes to introduce one, it is up to him to do so.
Lord Boyd-Carpenter: My Lords, in view of the great public interest and concern in this matter, does my noble friend feel that it would be helpful if your Lordships' House, with its vast mass of experience, were to debate this matter? Does he think that such a debate might be of considerable help to the Government?
Earl Ferrers: My Lords, I do not know whether or not it would be of help to the Government. It depends on what your Lordships might be good enough to say. If any noble Lord wishes to table a Motion, he is at liberty to do so.
Lord Mishcon: My Lords, is the Minister aware that he has gone on record for eternity as saying that in no way does the new scheme dilute what was payable under the old scheme? Will he kindly note and comment on the fact that I have a case before me of a doorman who was fatally injured as a result of intervening in a

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brawl? The award under the old scheme was £101,525 in respect of funeral expenses, bereavement award and dependency, with an additional £10,000 being awarded to each of the deceased's two sons, making a total of over £120,000. Under the new scheme the award would be £10,000, plus funeral expenses, in total.
Earl Ferrers: My Lords, the noble Lord is always accurate. However, if he quotes me, I should be grateful if he would be even more accurate than he normally is. I understand him to have said that I said "in no cases" would that be so. What in fact I said—Hansard will correct me if I am wrong and the noble Lord will be able to confirm whether or not I did say it—was "in most cases" is that so. The fact is that the amount of money available for criminal injuries compensation will be £558 million over the next three years, and for the past three years it has been only £462 million. New tariffs are based on the actual payments made by the Criminal Injuries Compensation Board. The noble Lord, Lord Mishcon, is right in that the payments in the past were made under two separate headings—one of general damages and the other of special damages. The special damages, some of which were considerable, applied to only a few people.
Lord Harris of Greenwich: My Lords, would the noble Earl agree that it is a little odd that, given the fact that the Home Secretary indicated that the victim must be placed first, we are now confronted with a situation where the victims of the most serious assaults will have their awards reduced? How can that be justified?
Earl Ferrers: My Lords, in the past awards were always made on the basis of what the damages would be at law under the civil courts. There is no absolute or right system by which to calculate that. The new figures were arrived at by the Criminal Injuries Compensation Board, using its judgment. Under the new scheme there will be a tariff which will make procedure far quicker and simpler. As I said earlier, in most cases the majority of people will receive as much if not more than under the present scheme.
The noble Lord, Lord Harris, may know that 48 per cent. of the claims under the Criminal Injuries Compensation Board scheme are for less than £2,000; 59 per cent. are for less than £3,000; and 94 per cent. of all the claims given by the Criminal Injuries Compensation Board are for less than £10,000. In the past three years only 21 claims out of 180,000 applications amounted to over a quarter of a million pounds.
Lord Vivian: My Lords, will my noble friend confirm that no member of the Armed Forces will be financially disadvantaged by the proposed changes to the criminal injuries compensation scheme?
Earl Ferrers: My Lords, I believe I am correct in saying that Her Majesty's Armed Forces come under a different scheme.
Lord Archer of Sandwell: My Lords, did I correctly understand the noble Earl to take the point that the Government are not under an obligation to bring the
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scheme before Parliament? Does that mean that the Government will bring matters before Parliament only when that is unavoidable?
Earl Ferrers: My Lords, it is a scheme which is made under the royal prerogative. The changes are made administratively to the scheme. The changes proposed are traditionally implemented by Answers to Written Questions, and that is what happened.
Baroness Hooper: My Lords, while recognising the advantages of simplifying and speeding up the system, will my noble friend agree that the introduction of a banding system raises inequities? For example, a child losing the sight of an eye will be in exactly the same category of compensation as an elderly person losing an eye. The implications are clearly different in both cases.
Earl Ferrers: My Lords, there are advantages and disadvantages in a tariff. In some cases the tariff will apply to the same type of damage to one person as it does to another. Under the previous scheme that did not happen.
Lord McIntosh of Haringey: My Lords, is the Minister aware that successive Conservative Governments are to be congratulated, first, on introducing the Criminal Injuries Compensation Scheme in 1964 and, secondly, on providing in the Criminal Justice Act 1988 that the scheme should have statutory status? The essence of the 1964 scheme, which would have become statutory if the 1988 Act had been implemented, was that the compensation should be equivalent to civil damages. What has gone wrong? Why is it now the case, as the noble Baroness, Lady Hooper, indicated, that a person who suffers the same injuries accidentally will receive much more from the civil courts than if the injury is inflicted deliberately? Is that a true reflection of the Government's much proclaimed concern for the victims of crime?
Earl Ferrers: My Lords, for one moment I could net believe my ears. I thought I heard the noble Lord, Lord McIntosh, congratulate the Government on what they have done. That is a happy position to be in and I hope that he will do that on other occasions also. That is not part of my brief, and if the noble Lord interrupts me he will make me forget what he asked. However, I shall provide an answer to what I believe was his question.
There were proposals to make the Criminal Injuries Compensation Board a statutory instrument. Provision were made in the Criminal Justice Act 1988. That could have been introduced under a commencement order but was not introduced specifically at the request of the board.
Lord Bruce of Donington: My Lords, does the noble Earl agree that the announcement of changes by way of Answers to written parliamentary questions is not always the best way of issuing Government Statements? Is he aware also that if one examines the Written Answers in another place, there is a tendency for them to concentrate round the day before Parliament goes into Recess in the hope, presumably, that the Answers will not be picked up? Even in the normal way,

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Answers tend to be given in Friday's Hansard, when a large number of Members of Parliament have already departed for their constituencies.
Earl Ferrers: My Lords, the noble Lord, Lord Bruce of Donington, is a careful watcher of all matters parliamentary. People do not have quite as long a Recess as he seems to think. The actual announcement was made on 23rd November 1992. I do not believe that that was the day before the Christmas Recess. It is around 15 months since that occurred so there has been wide knowledge of the matter. There is no secret about it. The White Paper was issued and there was an Adjournment debate—not on the day before Parliament rose, but on 18th March 1993. That was a year ago.

New Towns (Amendment) Bill [H.L.]
3.36 p.m.
Lord Finsberg: My Lords, I beg to move that this Bill be now read a third time. I take this opportunity to thank your Lordships for facilitating the passage of the Bill so far and to express the hope, which I am sure the House shares, that your Lordships do not have to hear me make the same speech for the third successive Session.
Moved, That the Bill be now read a third time—(Lord Finsberg.)
On Question, Bill read a third time.
Lord Finsberg: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass—(Lord Finsberg.)
On Question, Bill passed, and sent to the Commons.

Inshore Fishing (Scotland) Bill [H.L.]
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Inshore Fishing (Scotland) Bill [H.L.], has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Campbell of Croy: My Lords, I beg to move that this Bill be now read a third time. The Bill met with general approval from the organisations concerned outside the House. I thank all noble Lords inside the House who indicated their support for it.
Moved, That the Bill be now read a third time—(Lord Campbell of Croy.)
On Question, Bill read a third time.
Lord Campbell of Croy: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Campbell of Croy.)
On Question, Bill passed, and sent to the Commons.

Local Government (Wales) Bill [H.L.]
3.39 p.m.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rodger of Earlsferry.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 26 [Decentralisation schemes: preparation]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 69:
Page 20, line 10, leave out ("at least ten members") and insert ("by resolution").
The noble Lord said: We on these Benches much prefer Amendment No. 71 to Clause 26 as we do not believe that Clause 26 has very much more to do with expediency than it has with principle. However, we have a duty in a failsafe sense to try to do something to improve the triggering mechanism contained in Clause 26.
The difficulty with allowing any 10 members of a council to make a request for a decentralisation scheme is that in some cases it could be exercised against the wishes of the vast majority of the members of the council. If that were to happen then controversy would be introduced into the exercise of the power. If there is to be a controversy—indeed it may well be that controversy cannot be avoided in this kind of situation—it should follow upon a decision of a simple majority of the council rather than a decision by 10, assuming of course that 10 members do not constitute a majority. That is what is provided for in Amendment No. 69.
If Amendment No. 69 is not acceptable to the Government we believe strongly that the 10 members who request the decentralisation scheme should be members of the council for the part of the area for which a scheme is requested and therefore would be able to form a judgment with direct knowledge of the needs of the area in question and of the views of the electorate. Otherwise there is a risk that a scheme might be foisted on the council by councillors with no direct knowledge of the area in question. This amendment would be consistent with paragraph 2.3.2 of the consultation paper on area committees which was circulated last week. I beg to move.
Lord Rodger of Earlsferry: Perhaps I may begin with a few general remarks. The provisions of Clauses 26 and 27 represent the Government's considered response to people in areas such as Montgomeryshire, Brecon and Radnor, where, for the reasons which were discussed on Monday, the Secretary of State proposes to set up a relatively large authority. In such cases this provision gives a means for very concrete expression to be given to local community identity.
The provisions of Clause 26 provide for the delegation of certain local government functions to area committees. Area committees would have responsibility

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for delivery of these services and would be fully accountable locally. Clause 27 provides the necessary safeguards for ensuring that once a function has been delegated to an area committee it can only be returned to the full unitary authority in carefully prescribed circumstances.
As proposed by the Government, the first step in setting up an area committee is a request to the Secretary of State from at least 10 members of a new council asking him to issue a direction to that council to draw up a decentralisation scheme pertaining to any specified part of its area. The Government feel that 10 members is an appropriate minimum, since it would automatically exclude the possibility of area committees being requested on behalf of impracticably small communities. But it would not exclude any area which is a principal area under the existing system and which thus has an administrative structure linked with community identity.
The noble Lord's Amendment No. 69 would have the effect that requests for a decentralisation scheme direction could be submitted to the Secretary of State only if a principal council resolved to do so. As against the factors which the noble Lord mentioned, this amendment would run the risk of excluding those areas whose populations make up less than half that of the authority in which they were located. We envisage circumstances where an area which had only 20 members on an authority with a total of say 70 members might not gain sufficient support to obtain a resolution of the full council to submit a request for a decentralisation direction. In effect, members of areas not concerned with a potential decentralisation request would have the power of veto. That does not seem to the Government to be right. It would defeat the object of this clause which is designed to ensure that wherever 10 members consider that an area committee would be appropriate they should at least be free to submit this request to the Secretary of State for consideration. For that reason, the Government cannot accept Amendment No. 69.
The position is rather different with Amendment No. 70 because its effect, as the noble Lord indicated, would be to restrict the area from which an application could come forward to the area of the proposed committee. The Government recognise the strength of the argument put forward by the noble Lord and, if the Committee will permit me, we will consider this further and, very probably, return at Report with an amendment on the matter.
Lord Prys-Davies: I am grateful that the noble and learned Lord recognises that there might be some merit in Amendment No. 70. I beg leave to withdraw Amendment No. 69.
Amendment, by leave, withdrawn.
[Amendment No. 70 not moved.]
Lord Hooson Lord Hooson moved Amendment No. 71:
Leave out Clause 26 and insert the following new clause:
("Decentralisation schemes
26.—(1) Every council shall have a duty to prepare a draft decentralisation scheme for their area in accordance with this section.
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(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—

(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;

(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;

(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);

(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; and

(e) the provision 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 dale 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—

(a) send a copy of the scheme in its adopted form to the Secretary of State; and

(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: It is quite interesting that I have in my hand a transcript of the interview of the Secretary of State for Wales, Mr. Redwood, by Mr. Vincent Kane on 26th November 1993. Mr. Kane's first question was:
"are you convinced in your heart of hearts that local government needs reforming in Wales?"
Mr. Redwood replied:
"Yes, I think it will be much better to have a single council in each area rather than two, because that creates muddle and confusion, and I think the restoration of some cities, towns and counties as self-governing areas will be extremely popular in Wales".
It so happens that in Montgomery, Brecon, Radnor, the Cynon Valley, Merioneth and other such places, far from having self-governing areas, powers have been taken away. The local authority as we know it—for example, the district council in Montgomery—will not

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be able to decide its housing policy. It will not be able to decide a very wide range of matters. Far from there being a restoration of power, there is a great diminution.
Given that as the background—I shall come back to the words of Mr. Redwood that the present system creates "muddle and confusion"—I turn to what is proposed in Clauses 26 and 27. My amendment is a substitution. The noble and learned Lord the Lord Advocate will recognise the words because it is based entirely on the provisions for decentralisation included in the Local Government etc. (Scotland) Bill which is proceeding in another place and on which the noble and learned Lord, I would assume and believe, has had much greater and more beneficial influence than he has had on this Bill. The only difference between the two provisions in the proposed amendment is with regard to subsection (2) (c).
The Committee will note that there is a world of difference between the provisions. In the Welsh Bill it is provided that 10 members have to go cap in hand to the Secretary of State and require him to give directions and so on. In the Scottish Bill it is the duty and direct requirement of every council to prepare decentralisation schemes and its requirements. In the Welsh scheme the Secretary of State decides what is appropriate. In the Scottish scheme it is deemed to be appropriate if the local authority passes it.
The Scottish scheme requires that before 1st April 1996 public notice of the draft decentralisation scheme must be published. The public has to be invited to make representation. The unitary authority is required to consult the community councils. Only then is the council required to send to the Secretary of State, in its adopted form, the final scheme. The Secretary of State for Scotland can issue guidance and the council is required to take account of that guidance. Much greater authority is devolved to the councils in Scotland under their provision, which I believe is Clause 23 of the Scottish Bill.
The very helpful guidance on the Scottish Bill which I have from the House of Commons Library, says:
"The schemes could include the following features:
Meetings of the council (or any of its committees or sub-committees) could be held in different places within the council's area;
Committees of the council could be set up for particular areas and specified local government functions could be devolved to them;
Local offices could be set up; specified functions could be devolved to staff in those offices;
Local centres could be set up giving advice on services provided by the council".
Clearly, the so-called "Powys option" (as the decentralisation scheme outlined in Clauses 26 and 27 has come to be known in Wales) was very much publicised and talked about before this Bill was presented. It is of vital importance to many areas of Wales. In my view, and, I believe, in the view of other Members sitting on these Benches, all counties in Wales—if local government is really intended to be close to the people—should have schemes of decentralisation, as is required in Scotland. Not least is it of great importance to areas like my own and some of
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the other areas considered in the previous committee, given the indication so far of no change of heart by the Government.
From my inquiries and from an appreciation of the respective campaigns for unitary authorities in Brecon, Radnor and Montgomeryshire, I believe that this is probably true of all the other entities; namely, that they will want the maximum degree of real and not sham decentralisation. Why should it be controlled by the Secretary of State? I suspect that the councillors on the new Powys unitary authority will be markedly different from those on the present county council. I am sure that they will go there, as will those from Breconshire and from other areas, determined to have the maximum degree of decentralisation.
The effect and real provisions for decentralisation are also crucial to the well-being of faithful staffs, particularly those of Montgomery, and Brecon District Councils. I would assume that that would also apply to Radnorshire. I am only giving my own area as an example. Welshpool is 40 miles away from Llandrindod Wells. Imagine the effect on the transfer of staff. Much has been made about the effect of the Powys authority, if unitary authorities were set up for Brecon, Radnor and Montgomery, as regards the employment situation in Llandrindod Wells in Radnorshire. But what about the effects in Welshpool and Brecon? What about the transfer of staff, particularly as I am told, that a large number of the employees of the district councils have husbands or wives working in the area. There is difficulty in getting work in some of these areas. Therefore these decentralisation provisions are vitally important.
I make it clear that this is an exploratory amendment at this stage. I say to the noble and learned Lord the Lord Advocate that if the Government will not give way (and they have indicated that they will not), the vast majority of the inhabitants, according to my soundings since last Tuesday—which has included county councillors and Brecon, Montgomery and Radnor District Councils—would much prefer the status quo to the hotchpotch arrangement which is set out in Clauses 26 and 27. That would lead to far less muddle and confusion, which the adoption of these clauses would create in their present form.
As I have said, the purpose of the amendment at this stage is exploratory; namely, to look at the differences between Wales and Scotland and to inquire why they exist. Why does the Secretary of State for Wales require so much power over this matter when it is not necessary in Scotland? Why should not the new unitary authorities make their own arrangements for decentralisation in accordance with guidance, but no more than guidance, from the Secretary of State? Why cannot the guidance be properly published at this stage of the Bill so that we know exactly what it is going to be. I have seen rushed drafts which the Welsh Office has put out. They contain a number of contradictions which I shall not go into at this stage.
Successive Secretaries of State, such as Mr. Hunt and Mr. Redwood, have given publicly their own versions of the "devolution scheme" as they call it. It seems to me that it has been gradually watered down. The Welsh

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Office can go back on the specific but specious promises made so easily, as they have been going back on them over the past weeks and months. It has already gone back on the initial assurance given to the Campaign for Montgomeryshire representations to the Secretary of State. Mr. Redwood met the representatives with courtesy and they had a very good exchange of views at the meeting. They were three highly respected and knowledgeable representatives.
Mr. Redwood told them what he envisaged. For them he envisaged very substantial devolved powers, including—and this came from the Secretary of State himself—a considerable measure of financial independence. By the time the representatives of the Montgomery District Council went to see him some time later, there was considerable back-tracking. It now appears that the Welsh Office has in mind much less meaningful devolution and decentralisation of power than was originally set out and which the people of the area were led to believe would occur. The Powys model has been recommended for other parts of Wales. Powys was the model but nevertheless it has relevance to so many other parts of Wales.
The amendment appears to me—and to many other people; namely, to representatives of the existing county councils and district councils in Wales—to have many advantages over the provisions of the Bill. I am sure that the noble and learned Lord the Lord Advocate will be pleased to hear that. Much more approval is given to the Scottish provision by the Scottish Office than the provision made for Wales by the Welsh Office.
The Scottish provision recognises that all local authorities decentralise in a variety of different ways, such as local reception points, localised service delivery, and the establishment of local consumer groups. An area committee is but one of many options. Certainly in Powys one would hope to have the most powerful area committees; one for Montgomery, one for Radnor and one for Brecon. Other provisions might apply in other areas.
The amendment gives no power to the Secretary of State. The provisions for decentralisation remain matters for the council and for local people through a process of local consultation. I think that the Secretary of State will find that in Powys as a whole there is the feeling that people have not been properly consulted and that their feelings have not been met. I am sure that that is true of other parts of Wales as well.
The amendment does not lead to a confusion of accountability. That is an important point. If one is to have clear lines of demarcation, then the Scottish proposal is so much to be preferred to the Welsh proposal. Although there may be delegation, surely the whole council is ultimately the accountable body because it determines the nature of the delegation. As I have said, there might be the maximum of delegation in Powys and very much less delegation in other parts of Wales. The Scottish provisions seem to allow flexibility in the decentralisation pattern of each authority, subject to local consultation. The arrangements can be changed over time.
The amendment also recognises that no decentralisation scheme can overcome the difficulties of
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establishing a unitary authority which is over large and not based on a common sense of identity among the areas which it serves. I have always believed in unitary authorities. Indeed, I went on record in 1971 in the other place to suggest that the then Government of the day were making a great mistake in not having unitary authorities, but I never dreamt that there would ever be a unitary authority the size of Powys.
Therefore, I move this amendment in the hope that the noble and learned Lord the Lord Advocate can explain why these very important differences should exist; the reasoning behind the provisions set out in the Bill by the Welsh Office; and the reasons why the Secretary of State has gradually backtracked over what he promised in the first place. When we have the reasoning set out, we can look at the measure in much greater detail and return to it on Report. I beg to move.
4 p.m.
Lord Williams of Elvel: I should like from these Benches to support the noble Lord, Lord Hooson, in his amendment. It appears to us that for a number of reasons it is a significant improvement on the Bill put forward by the Government. First, as the noble Lord explained, the Bill as drafted gives the Secretary of State powers under Clause 26(7) to determine the nature of the decentralisation scheme. Secondly, we believe that Clause 26 and the accompanying Clause 27 evidence a certain inflexibility in the Government's approach, as based on the Powys formula to which the noble Lord, Lord Hooson, referred. If we are to have decentralisation, it is certainly the case that other parts of Wales—other than Mid Wales—will have their own systems. Those systems must be given proper authority. The local authority in question, the council, must be the authority which determines what those systems are. On those two grounds, we prefer the noble Lord's amendment.
Furthermore, a number of problems are raised by the draft guidance on decentralisation which the Welsh Office has recently produced. The noble and learned Lord the Lord Advocate may be able to say that I am not right on this, but it appears to me that, if we are to adopt the Powys solution, area committees will be allowed only limited powers. They will have part responsibility for some services. They will have no discretion on expenditure levels. They will not directly employ staff and, in the case of the shire committees that are envisaged for Mid Wales, their decisions can be overturned by the Mid Wales Council.
If that is what the Government are proposing, there will inevitably be confusion. There will be confusion on the allocation of responsibilities and on how the shire committees will be accountable. What is going to happen to the Radnorshire committee if, as a resident of Radnor, I wish to object to its decisions? I cannot object to the shire committee; I have to object to the Mid Wales Council, but I do not know by whom, where and how decisions will have been reached. So, accountability will suffer. Taken all in all, it seems to us that the Mid Wales or Powys solution is a recipe for confusion and, furthermore, for inefficiency in the administration of a large section of Wales.

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Indeed, when one really looks at the problem of accountability, one can see—as is too often the case, I am afraid, even under the two-tier authority system —that nobody quite knows where the buck actually stops. It is very difficult even in Radnorshire at the moment to say that the Radnor District Council is responsible for this and that Powys County Council is responsible for that. Perhaps I may give the noble and learned Lord an example. Mineral rights and rights of way are handled by the Powys County Council while other planning decisions are handled by Radnor District Council. Even under the two-tier system, it is difficult to know where one goes if one wants to complain. How much more difficult it will be where there is something which appears to be a unitary council, such as that for Mid Wales, but which, under the Bill, has the right to appoint shire committees for each of the three historic shires which make up Mid Wales!
Therefore, it seems to me that the noble Lord, Lord Hooson, has directed a serious argument at the Government. I very much hope that they will be able to convince us—it will be difficult—that their solution is better than that of the noble Lord. I wait with interest to hear what the noble and learned Lord has to say.
Lord Rodger of Earlsferry: It would be bold of me to think that I might be able to convince the noble Lord, Lord Williams of Elvel, but perhaps I can at least reply to some of the points that have been made. The proposal which is enshrined in Clauses 26 and 27 is a proposal for a scheme for decentralisation. Although as the noble Lord, Lord Hooson, said, it has become known as the "Powys scheme" or whatever it may be, it is not designed to deal solely with the situation in Powys. It is designed —and the provisions are deliberately phrased in fairly general terms—so that it can be used, as appropriate, wherever in Wales 10 members of a council consider that decentralisation would be appropriate. As I read it, it is not a rigid scheme. Indeed, the power of the Secretary of State under Clause 26(7) is that he shall not give a direction unless he is satisfied that a decentralisation scheme is likely to be appropriate for the area or areas in question. It would not necessarily be appropriate for Montgomeryshire to have the same scheme as that for which other parts of Wales had asked. The Secretary of State would have to be satisfied that the scheme was appropriate for the area asking for it.
Therefore, I begin by saying that nothing rigid is envisaged. What is envisaged is that people will ask for a scheme and that a scheme will then be brought forward. Before he approves it, the Secretary of State will have to be satisfied that it is appropriate for the area. The Committee will notice that even when a scheme is approved, it will not have been devised by the Secretary of State. It is a council's duty to submit the required decentralisation scheme to the Secretary of State in accordance with the direction in Clause 26(3). The scheme which is brought forward and which would be approved ultimately, is one brought forward by the council and therefore one would imagine that it would
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be thought to be appropriate to meet the case. The Secretary of State has to be satisfied that it would be appropriate in that particular case.
Lord Williams of Elvel: Before the noble and learned Lord leaves that point, I should like to ask him about the Secretary of State's approval of the scheme. What will be the future status of the guidance on these schemes from the Welsh Office? Is it to be ignored by councils or will it have some authority?
Lord Rodger of Earlsferry: The noble Lord raised the matter of guidance, I think, the other night. The Committee will see that the Secretary of State may issue guidance. It is merely guidance. As I was in the end forced to say to the noble Lord the other night, at the end of the day guidance is nothing but guidance and can of course be ignored. But in this case the Committee will be aware that if the guidance is ignored the scheme may not be one which is appropriate and adequate because it may not cover the kind and range of topics which would be necessary before a proper scheme could be in place. The guidance, as the Committee will have seen, is guidance which is designed—of course it is only draft guidance at the moment and is subject to comment—to ensure that the schemes, when they come forward, cover the kind and range of topics which would seem to be appropriate for the scheme.
Lord Williams of Elvel: Perhaps I may pursue this matter for just a moment, because I do not want to hold up the noble and learned Lord. When the guidance from the Welsh Office is out of draft and in its final form it will, as I understand it, go to the new authorities. Those new authorities will be required to provide their own decentralisation scheme to the Welsh Office. The Secretary of State will be entitled, if the guidance—to use my expression and that of the noble and learned Lord—is ignored, to say, "This is not appropriate for the area in question". In other words, unlike the guidance about which we were talking previously, the Secretary of State is in a position to enforce the measures contained in his guidance.
Lord Rodger of Earlsferry: I think that the noble Lord is right. On this occasion the guidance has more bite, if one likes, because it comes back to the Secretary of State. The point is well taken.
Lord Hooson: I am most grateful to the noble and learned Lord for giving way. While he is on that point, the guidance for Scotland is different, is it not? It is a general guidance, and therefore does not have the bite that is envisaged here.
Lord Rodger of Earlsferry: I think that it is true to say, although I must say that I am rather more familiar with the Welsh than I am, perhaps, with the Scottish provisions, that the bite does not exist in the Scottish scheme. I cannot say that the Scottish scheme is wrong for Scotland, of course. It is a scheme which has been devised and developed by the Secretary of State for Scotland as a scheme which he believes is appropriate for Scottish conditions.
The scheme devised for the Welsh system is one that the Secretary of State for Wales has devised as he thinks

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it would be appropriate with regard to the circumstances in Wales. Although I have some difficulty in saying this, I have the feeling that local allegiances are more intense in places such as Montgomeryshire and so on than they are in relation to the shires in Scotland. It may be for that reason that the particular form has been developed here. At all events, the form has been developed for Wales.
It is different, as the noble Lord has pointed out. But there are aspects of the difference to which the noble Lord has not drawn attention and which I believe are significant. The system that has been devised for Wales, if a scheme is put into place, gives a degree of permanence and assurance to local areas which is not available under the Scottish scheme, because, as the Committee will be aware, under Clause 27(8)(d):
"the council shall not, except with the agreement of the committee—

(i) abolish the committee or

(ii) alter any arrangements".

So that where, for example, a scheme is set up—say, under the new system Montgomeryshire has an area committee—then unless the Montgomeryshire committee agreed, it could not be abolished nor could the arrangements be altered. That gives to the local area committees a degree of assurance which has not been built into the system for Scotland. That is an aspect of the scheme which is different and which I believe provides particular and additional assurance to local areas in Wales.
There are matters referred to in the Scottish version which are not referred to in the Welsh proposal. The particular matters referred to in the Scottish version are all, with the exception of those in subsection (2) (c), wholly within the discretion of the individual councils concerned. For example, it is within the council's power to make arrangements for the holding of the meetings of the area committee at a particular place within the council's area. It could decide that the area committee would meet in some particular place, or that particular offices related to the area committee in the discharge of its functions should be in a particular place. One could envisage, for example, that an area committee would in fact decide to retain the district offices that had been used under the existing system and use them for meetings and as offices in which local officials could continue to work on the kinds of functions related to the area committee.
4.15 p.m.
Lord Williams of Elvel: I am most grateful to the noble and learned Lord. We have now established that the Secretary of State, in issuing guidance, issues guidance with bite; in other words, if the Mid Wales Council set up an area committee and decided that it wished that area committee—let us say the Radnorshire committee—to meet, as the noble and learned Lord has been explaining, in Prestatyn, and the Secretary of State says, "No, that's not appropriate for the area", the Secretary of State can do so by giving a direction to that effect.
Lord Rodger of Earlsferry: I do not believe that it would even be necessary for that matter to appear in the scheme, because it would be a matter for the council to
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decide. What we are dealing with is the setting up of the committee. It could be for the committee to decide where it wishes to hold its meetings, how often it wishes to hold its meetings, and so on. It is not prescriptive in that way. If the scheme which came forward dealt with that matter—my recollection is, and I am open to correction of course, that the guidance does not suggest that it has to be in the scheme—and it seemed wholly inappropriate, I suppose that the Secretary of State might become involved, but I would not envisage that that would be so in practice. Certainly it is not my understanding. The point I am making is that the matters to which I have referred, and which are highlighted in the Scottish clause, are matters which it would be within the powers of the council to decide upon.
Lord Hooson: I am obliged to the noble and learned Lord for giving way again. If one looks at subsection (4) of the Scottish Bill one sees:
"Every council shall, during the period mentioned in subsection (3) above consult the community councils within their area about the draft scheme".
That is mandatory. It is part of the legislation. It is not guidance. Why should not that apply in Wales? In other words, why in Wales should it be left to guidance from the Secretary of State whose hand is in the decentralisation scheme the whole time? Why cannot it be devolved with mandatory requirements, as in the Scottish scheme, to the unitary authority in question?
Lord Rodger of Earlsferry: I do not believe that any request has been received from community councils in Wales to be consulted about the schemes, although the noble Lord has made a point about that. As regards notification, there is a difference between the two clauses. The Secretary of State took what I believe to be a defensible view. We are debating the internal structure of a council and the way that it chooses to organise its affairs. The Secretary of State decided that essentially that was a matter for the council—an elected council—and that in taking decisions on the kind of decentralisation scheme that it should adopt it was not necessary for the council to notify the public. The Secretary of State took the view that the internal organisation of the council is a matter for the council and the area committee.
Attention was drawn to another pertinent issue; that as regards Scotland a duty is imposed on every council to draw up such a scheme. The Secretary of State for Wales took the view that certain areas in Wales are unlikely to want a scheme. It is thought that a decentralisation scheme for Anglesey, for instance, is unlikely to make sense. Therefore, the Secretary of State's view is that to impose a duty on every council in Wales to prepare such a scheme would be to impose a duty to do something which might not be sensible for their area. For that reason no such duty was imposed.
It is not a case of the Government interfering with the local authority. The Government are responding to requests from the areas which believe that it is sensible to have such an area committee; a decentralisation scheme. The scheme is designed to meet the belief—which was well and ably articulated by the noble Lord, Lord Hooson—that some areas may feel

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that they are part of a larger authority which does not have the local identity that they want. This whole policy has been devised in order to meet that feeling. It has not been devised to force decentralisation on communities which may not wish it.
Lord Hooson: Does the noble and learned Lord agree that a different philosophy is involved. The Scottish Bill requires every council to prepare a scheme. In Scotland there are authorities smaller in area than Anglesey. I wish that the noble Lord, Lord Cledwyn, were present. However, I know Anglesey reasonably well and I understand that it has local offices which deal with various issues. It has a decentralisation scheme under its own district council. The philosophy for Scotland appears to be that local government should be as local as possible and that there must be as much decentralisation as the unitary authority decides for itself. There is a requirement to publicise the scheme and to consult, and the public are involved. There is a requirement that the community councils, about which the Secretary of State for Wales has spoken so highly, should be consulted. That may be the best way of obtaining the views of people in a large, sparse rural area.
No such requirement exists with regard to Wales. I am exploring the matter in Committee because it is of the greatest importance to my area and to many others. One would not wish to change the scheme unless it were being changed for the better but I should like to have the matter explored thoroughly on Report. Will the noble and learned Lord tell the Committee about the background to the Scottish policy and how those views were arrived at?
Lord Rodger of Earlsferry: I honestly do not believe that I can give the noble Lord a fuller explanation of the Scottish background. It was said by Members of the Committee that in some sense the Powys scheme was rigid and not necessarily applicable to the rest of Wales. The burden of the song of my right honourable friend the Secretary of State for Wales is that the freedom to decide is given to the communities and to the councillors. If 10 councillors from an area believe that a committee is appropriate they can trigger it; they can spark it. They have the freedom to do that and they will do so where appropriate. The Secretary of State for Wales does not believe that as regards Wales it is necessary or appropriate to oblige all councils to go down that route. However, where people consider that it is appropriate for their area—for example, if councillors in Montgomery believe that it is a way of asserting a measure of control over the affairs of their area, as I anticipate they will—they will have the freedom to do that. That philosophy is a way of guaranteeing the local nature of local government. It is a different way of looking at the matter as it is embodied in the Scottish Bill but, nonetheless, it is consistent with giving full vent and effect to the local nature of local government and to responding appropriately to the particular desires of an area.
I accept that the scheme that is put forward is different but it is coherent and appropriate to Wales. As
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regards in particular the provisions for permanency and so forth, it has important built-in safeguards which will in practice be appreciated by the area committees and give a measure of stability.
The noble Lord, Lord Williams of Elvel, made a number of observations about the powers of the local area committees. I agree with them all, except his suggestion that the decisions of the area committees can be overturned. My understanding is that, on the contrary, they cannot be overturned. The whole point of this scheme is that an area committee will take the decision on issues which are devolved to it. That is, of course, subject to the fact that it does not have full financial control, and so forth—
Lord Williams of Elvel: I understand that the shire committees, as I call them, will have responsibility to take decisions and that that will be written into the standing orders of the principal council. But for the decision of the shire committee to be overturned all it needs is a suspension of the standing orders of the principal council. Am I wrong in that understanding?
Lord Rodger of Earlsferry: I believe that the noble Lord is referring to Clause 27(9). It provides that:
"Every decentralisation scheme shall include provision, to be given effect to by the standing orders of the council concerned, for the majority required in order for any suspending resolution to be passed to be such majority greater than a simple majority".
A suspending resolution means:
"a resolution to suspend any of the arrangements in force with respect to an area committee established in accordance with the scheme".
Therefore, if a matter had been devolved to a committee, the only way in which the parent council could become involved in that again would be by means of a suspending resolution which would suspend the scheme in respect of that matter. The matter would then be taken back to the council. However, as I understand it, that would have to be done in advance rather than afterwards, because while the matter was devolved it would still be a matter for the committee.
4.30 p.m.
Lord Williams of Elvel: I thank the noble and learned Lord for giving way. It is important we should have these matters clear in our minds. My interpretation of subsections (9) and (10) is quite simple. Every decentralisation scheme which is approved by and following the guidance of the Secretary of State will include the provision that the way decisions may be taken by the area or shire committees and not be overturned should be written into the standing orders of the principal council. Furthermore, there is a provision, to be approved by the Secretary of State, relating to the majority required to suspend standing orders in a case where the shire committee takes a decision of which the principal council disapproves. But it is still possible for the principal council to overturn that decision. Am I right or wrong in my interpretation?
Lord Rodger of Earlsferry: In the end, what the noble Lord says is correct. The material can go back and the matter can continue. One does not really envisage that situation in this case. Rather, one envisages a situation in which a matter that would normally be dealt

737
with appropriately at a local level by the area committee might, in a particular case, have ramifications which go beyond the scope of the area committee. Therefore, in that situation, where the council thought that it would not be appropriate for that matter to be dealt with solely by the area committee, it is envisaged that in practice, in that situation, the power would be likely to be used. At the end of the day, I believe that what the noble Lord says is correct.
It is important that there should be a prescribed majority which provides a lock although it is not a lock which cannot be turned. The noble Lord will have seen that the guidance suggests that the figure chosen should be such that it would always require at least one member of the area committee to vote for the matter to go back to the full council. Therefore, there is that important safeguard. If all members of the area committee consider that the matter should not go to the council, then it could not do so. Members of the Committee will have seen that in the guidance.
At the end of the day, the area committee cannot prevent matters going back to the full council. However, the approach taken in this Bill is stricter than the rather more general approach taken in the Scottish Bill. The provisions here are different but appropriate. They have been thought out within the Welsh context. It is thought that they will prove to be a workable and important measure for Wales. I do not believe that the noble Lord's amendment will prove advantageous to the situation in Wales.
Lord Hooson: I am obliged to the noble and learned Lord for his extremely careful analysis of the differences. I say immediately that I am extremely disquieted by the present situation. It seems to me that the Scottish provision is very much better and I do not see why it is not appropriate for Wales.
In various discussions the Secretary of State described the provisions for decentralisation as "locked in". It does not seem to me that Clause 26 locks in the provisions. Clause 26(7) states:
"The Secretary of State shall not give a direction unless he is satisfied that a decentralisation scheme is likely to be appropriate for the area or areas in question".
What does "appropriate" mean, and why should the Secretary of State be allowed to decide that? Surely the unitary authority should make that decision.
Section 26 (8) states:
"In considering whether a decentralisation scheme is likely to be appropriate for any area … the Secretary of State shall have regard to … the desirability of providing".
It is desired by whom? Is it desired by the area or by the Secretary of State? Subsection (8)(b) goes on to say that the Secretary of State shall have regard to:
"the particular circumstances of the local area including its geographical, historical, cultural and demographic circumstances".
It seems to me that we are in danger of having a hotchpotch arrangement. The Bill is vague. It has no built-in safeguards as regards consulting with community councils and publicising the scheme and so on. The Secretary of State can intervene at any stage to say, "Well, this is not an appropriate scheme".
In Scotland there is a definite devolution of power to local government with statutory requirements. The
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noble and learned Lord obviously enjoys his position in the Scottish camp and I hope that he is enjoying his foray into the Welsh camp because, whatever criticisms we have, they are not directed at him. As I said before, we regard him rather in the guise of a conduit pipe. People are concentrating on the Scottish position because that Bill is at present in another place. Therefore, will the noble and learned Lord provide further enlightenment on that point before Report stage? Perhaps the noble and learned Lord will circulate to Members of the Committee a letter setting out in some detail the background of the Scottish Bill and the thinking behind it. Will that be possible?
Lord Rodger of Earlsferry: I shall certainly do my best to write to the noble Lord with whatever further explanation I can give on the background to the matter.
Baroness White: I do not wish to detain the Committee because we have spent a long time discussing these extremely important matters. Clause 26(8) (b) refers to:
"the particular circumstances of the local area including its geographical, historical, cultural and demographic circumstances".
Those matters are to be for the sole judgment of the Secretary of State, as advised by the Welsh Office. The noble and learned Lord the Lord Advocate must have realised from our previous discussions in Committee that we should have very little confidence in that being carried out in a generally acceptable way.
Lord Rodger of Earlsferry: I note what the noble Baroness said. I should have thought that the noble Baroness would expect that the Secretary of State, when considering whether or not the scheme is appropriate, should have regard to those factors, and that it would be inappropriate if he did not do so. It seems to me that one would expect him to have regard to such factors.
The noble Lord, Lord Hooson, said that the Secretary of State has to consider whether or not something is appropriate. I should have thought that the noble Lord, Lord Hooson, would accept that the Secretary of State should exercise that power if he thought that the scheme would not be appropriate for the area. Given that he has such a power, he would then be passing a scheme that he thought inappropriate. In my respectful submission, that would not be something which, at the end of the day, would be thought to be in the best interests of the people in the area or of the people of Wales.
Baroness White: All I was saying was that one would not necessarily trust his judgment.
Lord Hooson: I do not intend to press the amendment to a Division. Accordingly, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clause 27 [Decentralisation schemes: approval, implementation and safeguards]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 72:
Page 21, line 41, at end insert ("or, in the absence of such agreement, with the consent of the Secretary of State").
The noble Lord said: The above is a modest amendment designed to improve the Bill by providing for the resolution of possible disputes. Historians tell us that Edward I could never subdue Wales, because as soon as he defeated the Welsh army in Gwynedd he found himself faced with another Welsh army in Deheubarth, and when each of them was not fighting him, they fought each other. Even so, and not otherwise, it is not at all unlikely that an area committee set up by a principal council under Clause 27 as the result of a decentralisation scheme may well find that it has matter of dispute with its parent body.
The latter would certainly be the case if (for good reason or bad, and among the good reasons might be financial efficiency or the realisation that in these new and changed circumstances a mistake had been made) the principal council were to seek to abolish an area committee, as is provided under Clause 27(8) (d). I find it difficult to imagine circumstances in Wales in which an area committee once appointed would voluntarily agree to its own abolition. I would be grateful if the noble and learned Lord the Lord Advocate could enlighten me on why and how such a circumstance was ever envisaged in the drafting of the Bill.
A fortiori, an area committee would have a tendency to resist a principal council's meddling with "arrangements in force" under Clause 27(8) (d) (ii), though the wording here, as it stands, prevents the parent body from varying anything in the original set up, or subsequently, without the consent of the body upon which the variants is to be practised. That seems to me to be asking for a generosity of spirit in local government hitherto unheard of in the Principality. Our amendment simply seeks to install the Secretary of State as an arbiter, as an umpire or as the referee in disputed cases—cases which there seems to be every likelihood will arise. That would be a very useful function for him to undertake; indeed, he may perhaps already have the power so to act (he seems to have almost unlimited powers in the Bill as it stands). However, I hope that the noble and learned Lord will be able to enlighten me on that point. As I said, it is a modest amendment and I commend it to Members of the Committee. I beg to move.
Lord Rodger of Earlsferry: I notice that the attitude of Members of the Committee towards interventions by the Secretary of State varies just slightly from time to time. Having gained the impression—perhaps, wholly wrongly—that at least some noble Lords were not too keen on the role of the Secretary of State in connection with decentralisation schemes, especially under Clause 26, there now seems to be a desire to draw the Secretary of State into such disputes.
The provisions in Clause 27 are designed, as I indicated earlier, to build in a high degree of stability and, in particular, to give a degree of assurance to the area committees that, once established, they will not, in effect, be threatened with abolition by the parent council if, for example, the complexion of that council were to change.
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Of course, if an area committee loses the confidence or the support of the community that it was set up to serve then, at the subsequent election, those concerned may well be voted out of office and the situation at that time would change. But, short of that, the Government believe that such matters—which, in effect, are matters regarding the internal arrangements of councils—should be left to the council. Where it agrees to the abolition or the changing of the terms of the scheme, then that can take place; but otherwise not.
If I may respectfully say so, I think that it would be invidious if the Secretary of State was called in to act as an arbiter or an umpire between, say, the Mid Wales council and the Radnorshire area committee. I submit that that would not, in the end, be appreciated by either body. Such matters which are matters of local government should ultimately be left to local authorities. For that reason, I ask the noble Lord to withdraw the amendment.
4.45 p.m.
Lord Morris of Castle Morris: I am grateful to the noble and learned Lord for that reply. Our attitude towards the powers of the Secretary of State is quite simple. It is rather like that of child care: if you do not like what some toddler is doing, you give him something else to do which is interesting for him and useful for you. That is the way we think Secretaries of State should certainly be treated.
I do not see that what we propose is unduly "invidious", a word used by the noble and learned Lord. Before I withdraw the amendment, perhaps he can tell me what then would be the position if, in a situation such as we have envisaged, those concerned are unbreakably deadlocked in opposition?
Lord Rodger of Earlsferry: We do not envisage that that is likely to happen frequently. However, where the position is as indicated by the noble Lord I expect that the matter would in due course be a factor which would be reflected in the results at the subsequent election and that the position would be likely to be resolved one way or the other at that stage. It is a matter for the council, as elected, to sort out. We do not believe that it is a matter where the Secretary of State could in effect perform a useful role.
Lord Morris of Castle Morris: I am grateful to the noble and learned Lord for that clarification, though I am concerned that such a situation —which, as I said, there is every likelihood we shall have to face before very long—should be left to the democratic processes at such a remove. If it happens early, it could be quite some time before a deadlock situation was resolved. I hope that the noble and learned Lord will think again between now and the next stage of the Bill's proceedings about whether such a situation could be improved. I shall also think about it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 27 shall stand part of the Bill?
Lord Prys-Davies: The noble Lord, Lord Hooson, my noble friend Lord Williams and I have given notice that we intend to argue that Clause 27 should not remain part of the Bill. I have listened carefully to the exchanges between the noble and learned Lord the Lord Advocate, my noble friend and the noble Lord, Lord Hooson. I should also say that I had discussions with the officers of the Assembly of Welsh County Councils and the council of the Welsh districts. There are very real concerns about Clauses 26 and 27. I believe that I can, possibly, best help Members of the Committee by summarising those concerns. That will at least help to address our minds to issues which we may well have to resolve between now and the Report stage or, perhaps, even at a later stage.
There are five main worries. The first is that the Secretary of State, in the consultative document on decentralisation, has given a broad indication that a decentralisation scheme will probably only be available to about 12 of the new authorities. That is a rough calculation but it is a recipe for trouble—that would be the view of the Welsh Office—as it would be extremely difficult to deny a decentralisation scheme to any community which believes that decentralisation is appropriate to meet its circumstances. That would, of course, be allowed for in the Scottish model, but not allowed for in the Welsh scheme. If the Secretary of State is determined to oppose such a request, that would create a genuine sense of grievance in that community.
Secondly, where the decentralisation applies—as I read the document—the area committee can have responsibility for certain major decisions such as the determination of a local planning application, many aspects of social services, the allocation of tenancies and the management of housing stock. But, as my noble friend Lord Williams of Elvel pointed out, the area committee is denied responsibilities in other important areas such as the preparation of the community care plan. It is denied any education functions and denied the designation of litter control areas. It is not clear—I believe this point has been made by the noble Lord, Lord Hooson, and my noble friend Lord Williams of Elvel—on what theoretical ground delegation has been allowed or denied. If we are not clear about the theoretical basis for the delegation or non-delegation, it is difficult to see how one can tell the Committee that the arrangement is defensible in principle.
Thirdly, we believe that the arrangement contains real potential for friction between the unitary authority and the area committee. If there is conflict, each authority could quickly become dissatisfied with its position. As my noble friend Lord Morris of Castle Morris indicated, there could even be deadlock. However, each authority would have an admirable forum in which to express its grievances and its frustration. That will lead to instability. Moreover, where the area committee could be expected to have a political majority different from that of a principal council the risk of serious friction between the two structures would be added to. As a result we believe—the officials who advised me and councillors believe this—that the ability of either authority to take decisive action would be greatly weakened, and
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probably to an increasing extent. I followed the exchange between my noble friend Lord Williams of Elvel and the noble and learned Lord the Lord Advocate and it is not clear to me that there are any statutory restrictions on the matters which can be specified in a suspension order.
Fourthly, given that we have the principal council, and perhaps two or more area committees, the whole process of local government could become more cumbersome and inefficient because one would need to have machinery to secure co-ordination between the principal council and the area committees.
There is a fifth point which has only been touched upon. As I read the consultative document, the staff of the area committee are to be employed and remunerated by the principal council, although it is not clear from the document who is really to appoint the officials. But if the officials are to be employed and paid by the principal council, that could make it difficult for them to undertake the tasks allotted to them. Would they not have a role conflict between loyalty to their parent authority and to the area committee they are seeking to serve? We believe it is unreasonable to put officers in such a position as, after all, they have to consider their careers.
We believe that the decentralisation clause, as elaborated in the consultative document, leads to serious problems. It leads to frustration, instability and, at the end of the day, many parts of Wales may land up with a full-blown two-tier structure—that also is a possibility—with all the disadvantages that flow from that. We therefore believe that Clauses 26 and 27 should not remain in the Bill. It may well be that we should consider something of a compromise between what is in this Bill and what is in the Scottish Bill but we must ensure that it suits Welsh circumstances. I ask the noble and learned Lord the Lord Advocate to take on board the fact that serious concerns have been expressed by the officers who, at the end of the day, will have to operate the structure.
Lord Hooson: I wish to make one point on this matter as Clauses 26 and 27 are closely linked and we shall return to them on Report. Presumably a Powys unitary authority would try to pursue a consistent. planning policy across the whole of the Mid Wales area, even though it may devolve individual decisions to area committees. Clause 27(8), for example, provides that the membership of the Montgomeryshire committee will consist of members elected from electoral divisions within Montgomeryshire. Clause 27(8) (c) states:
"no other persons shall be eligible for appointment to the committee".
I wish to point out a practical matter that would arise here. The provision means that the Montgomeryshire planning committee cannot include any other Mid Wales councillors from Radnorshire or Breconshire even if one of those councillors was the chairman of the planning committee of the Mid Wales authority. That does not seem to me to make sense. I get the impression that the whole thing has been cobbled together in a hurry. It seems to me that it is quite right to delegate a decision on a planning application to a Montgomeryshire committee. However, if the chairman

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of the planning committee is putting into effect the approved planning policy across the whole of Mid Wales, it would seem to me to be sensible that he at least should be allowed to be included on the Montgomeryshire committee. This is the kind of matter that needs to be considered. I do not feel in a position to take the matter any further today because I have an open mind about Clauses 26 and 27 in this Bill and in the Scottish Bill. All that I need to be convinced about —I am a long way from being convinced—is that the scheme put forward in this Bill is a practical one.
Lord Williams of Elvel: I hope that I may add a small comment to what the noble Lord, Lord Hooson, said about planning. It is, to those of us who live in Mid Wales, quite clear that the philosophy of Radnor district council is different, in terms of planning, from the philosophy of Breconshire council.
I do not know enough about Montgomery to know the position there, but certainly Radnor and Brecknock work in quite a different way. If one crosses the Wye from Llanelwedd into Builth one can see the difference between the planning philosophies of the two councils. If we are to go down the route that, as the noble Lord, Lord Hooson, said, only people from Radnor will serve on the Radnor area committee and only people from Brecknock will sit on the Brecknock committee yet the structure plan will be determined by Mid Wales, I can see enormous problems in practice in working that out with the people who are on those committees at the moment.
5 p.m.
Lord Rodger of Earlsferry: To start at the end, with the general point of planning, as raised by the noble Lord, Lord Williams, in his final remarks, it is envisaged that the unitary development plan for the whole of the area of Mid Wales, for example, will be and will remain the responsibility of the Mid Wales Council. However, within that overall plan, decisions on planning applications within their areas will be matters which will be open to the area committees.
Lord Williams of Elvel: That is exactly what happens at the moment. Powys has a structure plan and within that structure plan Radnor and Brecknock take decisions which are totally different in philosophy.
Lord Rodger of Earlsferry: The philosophy behind the Bill is local government. The philosophy behind the decentralisation schemes is that if the elected councillors of Radnorshire take one view and the councillors of Montgomeryshire take another view it is not wrong that within the overall structure plan determined for Mid Wales individual applications should be determined by the elected representatives of the appropriate area. That is really what underlies this measure. If the result is that there are differences, then so be it. The noble Lord, Lord Hooson, believes that the people of Montgomeryshire react differently from the people in Radnorshire. As I understand it, the whole
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point of the scheme is that at the end of the day that should be reflected in the way in which planning applications are dealt with.
Lord Hooson: On that particular point I agree with the noble and learned Lord. However, my point is a much narrower one. It seems to me not altogether sensible to exclude completely the chairman of the planning committee. He need not be the chairman of the area committee but at least he should be a member of that committee.
Lord Rodger of Earlsferry: I note the point which the noble Lord makes. It may be that in practice his views can be brought to bear.
I turn now to the more general points made by the noble Lord, Lord Prys-Davies. He mentioned that on one view the scheme could probably apply to only 12 of the councils. The noble Lord will have noticed, and I do not believe that he meant to suggest otherwise, that this is merely guidance. The document says that every application will be considered on its merits. It states merely that it will not usually be appropriate in particular cases. Therefore, the Secretary of State has discretion. If he received an application which seemed to be meritorious in another area I have no doubt that that would be acceptable.
It is true to say that the area committees will sometimes exercise certain aspects of the function and at other times will not. There may be very good reasons for that, especially in matters such as finance. The reason would not be the fact that they are area committees but that they are committees at all and these are matters which have been reserved by Parliament to the entire council. It is for that reason that many of these divisions arise.
I accept that in a structure such as this there must be some room for friction. However, in so far as decision on these matters is devolved—and if we take the example of planning decisions in Radnorshire—I do not believe that there would necessarily be a great deal of friction between the central council and the local council. I cannot say that there would be none, but these are essentially matters which under these schemes are for local decision.
I can see that where there is more than one such committee —for example, in Mid Wales where there might be three—there would have to be a degree of co-ordination. The staff must be employed by the council as a whole. They cannot be employed simply by a committee. It is my belief that council officials would act professionally and their judgment would not be affected by the fact that they were in day-to-day contact with local councillors although they were technically employed by the central council. A central council which sought to victimise officials for their actions or sought to dismiss them or otherwise interfere with their employment because they took decisions or advised local committees in a way which was unpopular would soon get into difficulties.
I accept that wherever there is a structure of this kind there may be certain tensions, but the Secretary of State is not forcing these proposals on anybody. What is being said is that if people wish this because of individual

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areas having separate identities this is a way forward. It is a way forward which, while having the benefits of a unitary system and the financial savings which arise from that, nonetheless preserves local identities. I believe that if there are minor difficulties or teething difficulties they are nonetheless likely to be worth it.
Clause 27 agreed to.
Clause 28 [Provision of information to Secretary of State]:
On Question, Whether Clause 28 shall stand part of the Bill?
Lord Williams of Elvel: I should be grateful if the noble and learned Lord could help me on one small matter on this clause. It is not a matter of great principle.
The clause allows the Secretary of State to request information from local authorities. I am not entirely clear why the clause is necessary, given Section 230 of the Local Government Act 1972 which already provides that:
"Every local authority … shall send the Secretary of State such reports … and give him such information with respect to their functions as he may require".
It seems to me that that clause which is already in legislation would satisfy the noble and learned Lord's strict requirements for the Secretary of State for Wales and I cannot understand why we have this clause in this Bill.
If we include this clause it would appear to give the Secretary of State very wide powers, as the 1972 Act gives very wide powers. I should be grateful if the noble and learned Lord could help me on that point.
Lord Simon of Glaisdale: I am here only because the noble Lord, Lord Hooson, proclaimed a call to arms in relation to a later amendment. As I am here perhaps I may reinforce what the noble Lord, Lord Williams, has just said.
The requirement to give information is a requirement to accumulate power. The information is brought into Whitehall. It is a further means of centralisation, of which complaint has been made not only in relation to this Bill but practically every measure that now comes before Parliament. The complaints that were made on two heads of high constitutional importance in relation to the Police and Magistrates' Courts Bill must be fresh in your Lordships' memory. The information is presumably to be used for some purpose, and that can only be to exert influence on the local authority providing the information. More than that, it requires public servants to accumulate, guard and, one hopes, scrutinise periodically the information. As such, it is undesirable.
Anthropologists tell us that in some areas the name of every person is kept secret and everybody adopts a false name because if the real name is known power can be exercised over him. I see that the noble Lord, Lord Morris, agrees with that. Perhaps in more sophisticated societies we have the guarding against accumulation of information in computers, because information accumulated is an instrument of power. Therefore, there are safeguards against that in dataprocessing. So it seems to
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me that this provision is thoroughly undesirable and, as the noble Lord, Lord Williams, has suggested, it is almost certainly unnecessary.
I have another point on subsection (3) which says that the requirement to give information shall not be taken to be to the prejudice of any other provision requiring information to be given. There are two reasons for that. One is the real reason and the other is the bogus reason that is always put forward on these occasions.
The real reason is that this provision has got into a computer in the draftsman's office and it comes up whenever the context comes up for scrutiny in the draftsman's office. It is entirely unnecessary. The bogus reason that is given is that it is a safeguard against anybody arguing that because this information is required it means that there is abrogation of every other provision in the statute book requiring information to be given. The noble and learned Lord is a famous and distinguished lawyer and I respectfully defy him to deny that if such an argument were put forward in a court of law the person putting it forward would be blown out in a great gust of hilarity. I hope that this sort of measure may be dropped.
Lord Prys-Davies: I should very much like to support the plea of the noble and learned Lord, Lord Simon of Glaisdale. If this power remains in the Bill the local authorities should not be misled or be in any doubt about the extent of the new power or, indeed, the purpose for which it might be used. This is one of the points which the noble and learned Lord, Lord Simon, made very clear, that the power could be used not merely to ascertain information but to influence policy. If there is a risk that it can be used to influence policy between now and 1999 it should not be in the Bill.
5.15 p.m.
Lord Rodger of Earlsferry: The real reason why the power has been put in—and it may be that, strictly speaking, other powers which could have been used would have been available under Section 230—was not in order to increase the scope of the powers of the Secretary of State, but rather to make quite clear that what we are dealing with in Section 28, as in Section 29, is very much a transitional power. It is a power which is to be exercised, as your Lordships will see, before 31st March 1999, as is Clause 29(1), and your Lordships will see a reflection of that again in Clause 30. It is part of a package of powers which are available and set out in Clauses 28, 29 and 30.
It is designed to show that what the Secretary of State is obtaining here is information in relation to details, not in relation to the policy of the function but
"details of the arrangements which they have made, or propose to make, for the performance of specified functions of theirs".
The point of this is that it is related to the question as to whether or not the new authorities have in place, or seem likely to have in place, adequate arrangements for the performance of their specified functions. For example, it is envisaged that complaints may come to the Secretary of State from people in an area that, for example, the functions in relation to a particular matter, whether it be schooling, housing or whatever, are not

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being adequately performed and that the arrangements are not adequate for their performance under this new function.
The other day we discussed trading standards. One might get a complaint as to that. In that situation this is designed to be a power which the Secretary of State would use, within that timescale to 31st March 1999, in order to obtain nothing more than information on the arrangements so that he can judge whether or not any complaint which has been made to him about them is well founded or not.
That is really the purpose of the power. It is the first and weakest power which the Secretary of State takes, the second power coming in Clause 29 and the most drastic power coming in Clause 30. In effect, it is a series of powers, the first being the weakest one, but all of them limited to the time up until 31st March 1999, showing thereby that they are designed wholly to deal with the situation while the new councils are running under their first election, and that the power should expire at the time when the new councils come to submit themselves to the judgment of the electorate, who will be the people who will judge whether or not the arrangements are adequate thereafter. That is why the power is there and that is why it is time-limited in that way.
The noble and learned Lord, Lord Simon, referred to Clause 28(3). He may be right that an argument based on the suggestion that this clause excludes another power, would not be likely to meet a good reception. Nonetheless it is often wise to prevent such arguments even coming to court and wasting people's time. Nothing sinister is meant by subsection (3).
Lord Williams of Elvel: Will the noble and learned Lord do me a favour? He seemed in some doubt as to whether Section 230 of the Local Government Act 1972 covered the requirement that he has just explained to us. If, on research, he finds that that is the case, that the powers are already available, given by Parliament to the Secretary of State, will he come back on Report and say that the clause is unnecessary? That will satisfy all members of the Committee.
Lord Rodger of Earlsferry: I shall certainly come back and say whether or not it is thought, on further reflection, that the power in Section 230 is sufficient. On a first look, it seems to me that it would cover most matters. I did not dispute what the noble Lord said, but the reason the clause is there is to show that in that area the Secretary of State would act under a specific power—not a general power—limited in time. Therefore it is not simply general.
Lord Williams of Elvel: If it is true that Section 230 of the Local Government Act 1972 gives the Secretary of State all the powers he requires, the time limit which the noble and learned Lord emphasises has no relevance at all because the 1972 Act has no time limit.
Lord Rodger of Earlsferry: But of course the power is tied in with the provisions of Clauses 29 and 30. It is the first step in those matters and it does not exist for any other purpose.
Lord Prys-Davies: That is what causes a great deal of anxiety. I believe that the noble and learned Lord the Lord Advocate described the clause as being one of reserve powers. It paves the way for Clauses 29 and 30 and that causes us a great deal of anxiety. Can the noble and learned Lord give us an indication of what information will be available under the clause which is not available under Section 230? I have read Section 230 and it provides that:
"Every local authority … shall send the Secretary of State such reports and … information … as he may require".
That seems to be broadly worded and I should have thought that the Secretary of State would be content.
Lord Rodger of Earlsferry: I do not think that I disputed that it seemed a broad clause. I was trying to suggest that its purpose was to have a definite power which could be seen when the Secretary of State was operating within this context. That is the reason behind it and, of course, I note what Members of the Committee have said. I shall take the matter away and reflect further on it.
Lord Simon of Glaisdale: I thank the noble and learned Lord for dealing with subsection (3). Will he further agree that if we try to guard against any argument that is put forward, however fanciful, the statute book will continue to grow even more inexorably than at the moment?
Lord Rodger of Earlsferry: I have no hesitation whatever in agreeing with that proposition.
Clause 28 agreed to.
Clause 29 [Joint working arrangements]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 73:
Leave out Clause 29 and insert the following new clause:

("(1) Where the Secretary of State may reasonably conclude in accordance with section 28—

(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 such councils in relation to the exercise of those functions, but

(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 shall, before exercising the power in subsection (3) below, at any time before 31st March (1997), first inform the councils concerned in writing that it appears to him that satisfactory joint working arrangements, in relation to the exercise of specified functions, are not, or are unlikely to be, in force, for the reasons stated by him and require them to submit to him, within a specified time, for approval arrangements in relation to the exercise of those specified functions.

(2) The arrangements submitted for approval in accordance with subsection (1) may, in particular, be, or include, arrangements in relation to the exercise of specified functions.

(3) If the arrangements submitted in accordance with subsection (1) are approved by the Secretary of State, he may give a direction requiring the implementation of such arrangements.

(4) In considering whether to give a direction under subsection (3) the Secretary of State will consider whether the arrangements submitted by the councils are likely to lead to the functions in questions being discharged effectively and in a financially efficient manner.

(5) A direction under subsection (3) shall remain in force

(a) until it is withdrawn by a notice in writing given by the Secretary of State to the councils concerned; or

(b) where a period is specified in the direction during which the direction is to have effect and the direction has not been withdrawn by the Secretary of State, until the end of that period.").

The noble Lord said: Amendment No. 73 is a substitution for Clause 29 which empowers the Secretary of State to give directions to the principal councils requiring them to enter into a joint arrangement. That in turn could pave the way to a Clause 30 order.
Many potential difficulties arise from joint working arrangements. These have been brought out clearly in the report of Touche Ross to the Welsh Office. However, it is implied in Clause 29—and in Clause 20 for that matter—that responsibility or blame for the failure to set up the arrangements can be laid at the door of the local authorities and that, somehow or other, joint arrangements will accomplish what the two councils have hitherto failed to achieve.
As the Welsh Office accountants point out, there are many reasons why joint arrangements which the Secretary of State has in mind will also fail. We believe that the difficulties facing the local authorities must be fully understood by the Secretary of State before he decides whether or not to make an order under Clause 29. As the clause stands, there is no obligation on the Secretary of State to consult the councils before he exercises the power. Under the clause, they have no right to seek to show cause why the Secretary of State's proposed arrangements may fail to achieve the desired end, and why he should not exercise the power. Clause 29, therefore, contains no safeguard against an erroneous use of the power by the Secretary of State.
Amendment No. 73 offers two safeguards. First, the Secretary of State's judgment must be objective, based on the evidence. As it stands, the whole clause is governed by the opening words in line 1:
"Where it appears to the Secretary of State".
What we have in that clause is without doubt a subjective test. Line 1 of our amendment imports an objective test. That is the first safeguard.
Secondly, the amendment requires that the councils be given an opportunity to produce and submit arrangements for the Secretary of State's consideration and approval after he has explained to them why he considers that their existing or proposed arrangements are not acceptable to him.
The experience of knowledgeable councillors and officials is that it is difficult to bring about co-operation by an edict such as we have in Clause 29. Of course, the law can encourage and facilitate co-operation, but it is not something which one can order by an edict. Thus I ask the noble and learned Lord the Lord Advocate to accept that the local authorities in Wales are deeply concerned about Clause 29 as it stands. It has been much discussed by councillors and their officers and I believe that the amendment reflects their anxieties, but it also suggests a positive way forward. I beg to move.
Lord Elton: Will the noble Lord help me on a minor point but one that is nonetheless relevant? Do we understand that the words:
"in accordance with section 28",
are intended to convey that the Secretary of State will first have had information under Clause 28 and considered it before he makes the order? Is that the intention? I think that the words "in accordance with"
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imply that he is doing something under powers in Clause 28 but the new clause would not provide that he was doing so.
Lord Prys-Davies: The amendment assumes that Clause 28 remains part of the Bill.
Lord Elton: I understand that. All I am asking is this:is the intention of the words:
"in accordance with section 28",
to require the Secretary of State to act under Clause 28 before he acts on Clause 29?
Lord Prys-Davies: I take the point. I think I shall have to take further instructions on it. As it stands, the amendment assumes that Clause 28 is operative and that the Secretary of State will come to a decision under Clause 29 after he has paid regard to the information and evidence which is collected under Clause 28.
Lord Rodger of Earlsferry: As was discussed earlier, Clause 29 in effect provides the second limb of my right honourable friend's reserve powers. It is the case, as the noble Lord, Lord Prys-Davies, envisaged, that it would be used following upon the use of powers under Clause 28 to obtain information of the kind specified in that clause. It would then be a question for the Secretary of State, acting upon the information so obtained, or obtained in any other way, to intervene in circumstances where it appears to him that there is likely to be a failure of the service or that such a failure has occurred.
The noble Lord, Lord Prys-Davies, drew attention to the words in subsection (1) of his amendment: "the Secretary of State may reasonably conclude". While I fully understand the amendment, it is not necessary. As the noble Lord is aware, in these days of judicial review any power of this kind is used on the basis that a decision cannot be taken which no reasonable Secretary of State would take. In other words, these powers are interpreted in such a way that the decisions are only valid if they are decisions which a reasonable Secretary of State would take. Therefore, nowadays that kind of approach is, in effect, built in.
When the Secretary of State concludes, he may intervene in circumstances where it appears that there is likely to be a failure of service or where such a failure has occurred. It would of course be an intervention responding to local circumstances. I stress that my right honourable friend the Secretary of State would consult before issuing any direction under this power. Any direction which he then issued requiring an authority to enter into joint arrangements with another authority could specify, for example, the individual functions or services to which any such arrangements would apply. It would not be a question of them having to apply, for example, to the general function such as social services as a whole. They could apply to some particular aspect of it.
In the first instance, the direction might simply require an authority to enter into joint arrangements with another authority and not give any further specification. If the authority did not do that, or if difficulties persisted, then it would be possible for the Secretary of State to issue a series of what would, in

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effect, be increasingly prescriptive directions about the nature and terms of the joint arrangement. But the approach would always be minimalist, in the hope that when required to enter into joint arrangements the local authorities would indeed be able to come to a satisfactory arrangement. But at the end of the day the Secretary of State would have the powers increasingly to specify the nature of the arrangements.
Such arrangements could be made under Section 101 of the Local Government Act 1972, whereby an authority takes on the responsibility for a particular function on behalf of another; or it could be that the councils under that section, and under Section 102 of that Act, could establish a joint committee to administer the function; or they could use the cross-border trading provision in Clause 24 of this Bill. Nor, of course, would the arrangements need to be permanent. They could be withdrawn once the authorities had demonstrated that other arrangements would be sufficiently robust. There is provision for the direction to be time limited and no new direction may be made under this clause until after 31st March.
The amendment of the noble Lord, Lord Prys-Davies, would require the Secretary of State, before making a direction, to inform the councils concerned that it appeared to him that particular joint working arrangements were not, or were unlikely to be, satisfactory and to require them to submit arrangements for his approval. If he approved those arrangements, he would then give a direction requiring their implementation.
The concept of this amendment is flawed because it contains a power under which the Secretary of State can direct councils to implement arrangements which they will have been required to submit to him. But what would happen, for example, if the councils failed to put forward the required arrangements, not because they were being difficult about the matter but because they were genuinely unable to agree on mutually acceptable arrangements? Nor does the amendment make an allowance for the arrangements put forward to be unacceptable to the Secretary of State. In that situation he could not approve them given the terms of the powers under subsection (3) of the amendment; therefore, in effect the Secretary of State could do nothing. In that situation there would be a risk of being left with authorities not delivering the proper service, yet nothing could be done. Therefore, as I said, the amendment is flawed.
As I understand it, the noble Lord's amendment would also bring forward the final date by which the Secretary of State could issue a new direction under this clause. Again, the decision to specify 31st March 1999 is simply to safeguard services during the transition period. We understand that it may take some time for the pattern of services to settle down. But during that period the Secretary of State would have a responsibility under this clause for making directions as appropriate. After 31st March 1999, and the second set of elections, it would be a matter for the judgment of the local electorate as to what happened. This is a reserve power, and in my respectful submission its form is appropriate.
Lord Prys-Davies: I am grateful to the noble and learned Lord the Lord Advocate for his very careful consideration of the amendment. I accept that subsection (3) is imperfect. It is incomplete. We shall have to read and digest his words very carefully and decide whether we should revert to this subject with Amendment No. 73 perfected. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 29 shall stand part of the Bill?
Lord Elton: Perhaps I may ask my noble and learned friend to repeat something that he said. I believe that he used the word "permanent" in reference to subsection (5) at line 40. That is the point of my interest. Is it intended that notices given by the Secretary of State may on occasion be permanent? I see that it is possible for them to be permanent if the Secretary of State never gives a notice in writing requiring them to be withdrawn. Is it a policy intention that they may be permanent? If that is so, that is relevant to an amendment that I have to explore.
Lord Rodger of Earlsferry: It is not an intention that these should be permanent. It would obviously be desirable if the position resolved itself so that there is no longer any need for the direction to remain in force. But it is envisaged that the direction can remain in force indefinitely if no period is specified in the direction.
Lord Elton: I am much obliged to my noble and learned friend.
Clause 29 agreed to.
The Deputy Chairman of Committees (Baroness Serota): In calling the next amendment, I should point out to the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 75 and 76.
Clause 30 [Joint authorities]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 74:
Page 23, leave out lines 13 to 20 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: Once again it is our duty to try to improve Clause 30, although we are strongly opposed to its remaining in the Bill. The clause gives the Secretary of State licence, subject to affirmative resolution, to establish a body corporate to discharge a local authority function. But as it stands, the clause makes no provision whatever for membership of the body corporate. Its members may have no experience of the local authority and no knowledge of the local authority world.
This amendment would ensure that the membership is drawn from the councils concerned and nominated by those councils. That would ensure first, that the function remains under the control of local councillors; and

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secondly, that the function will be seen as a local authority function. Thirdly, without the local authority support the body corporate would work less effectively.
I believe that there is a precedent for this amendment in Section 21 of the Local Government Act 1992. I beg to move.
Lord Rodger of Earlsferry: I should stress that even as drafted Clause 30 would not prevent the Secretary of State from establishing joint authorities with membership drawn exclusively from the constituent councils. I know that in fact that is the Secretary of State's wish. He has no desire to increase the number of quangos in Wales by using this power. Therefore I am happy to take away the amendment and come back with an appropriate amendment embodying the spirit of it.
Lord Prys-Davies: I am grateful to the noble and learned Lord the Lord Advocate for that response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 75:
Page 23, line 14, at end insert:
("( ) Before exercising the power in subsection (1) to make an order to establish a joint authority, the Secretary of State shall first cause a public enquiry to be held by a person appointed by him, not being an officer of either the councils likely to be affected by any order or of any government department.").
The noble Lord said: The purpose of the amendment is to try to build into Clause 30 a safeguard against the erroneous use of the Clause 30 power. In England there is a safeguard in Section 21 of the Local Government Act 1992, as I understand it. In England the Secretary of State has to have regard to the recommendation of the local government commission before he can go down that route. But Wales does not have the benefit of a local government commission.
It appeared to us that the Secretary of State ought to have advice from some independent source before he decides to resort to the Clause 30 power. It occurred to officials and councillors that a public local inquiry ought to be convened to study the difficulties and the performance of the local councils and to hear evidence both for and against the proposal. I beg to move.
Lord Rodger of Earlsferry: The Government's view is that it is not necessary to have an inquiry, as the amendment suggests. It has to be borne in mind that the powers under Clause 30 will only arise where there has already been a direction under what will be by then Section 29. As I said, it is therefore the culmination of a process.
I also stress that an order establishing a joint authority is likely therefore to be a rather extreme remedy, justified only by a serious threat to the wellbeing of the community concerned (and perhaps in particular a threat to vulnerable individuals for whom a proper service is not being provided) and where the efforts of the Secretary of State, using the powers under Clause 29, have been to no effect or not of sufficient effect.
In those circumstances there will be a pressing need for immediate action. It is not appropriate for that action to be delayed by an independent public inquiry, which
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would inevitably delay the appointment of the joint authority and therefore the possible remedying of the difficulty.
In saying that, I draw the Committee's attention to the fact that in terms of Clause 59(3) of the Bill, the creation of a joint authority by virtue of the power under Clause 30 would have to be approved by both Houses of Parliament. Subject to that, the joint authorities are intended to be a swift and practical solution to urgent service delivery difficulties. But again, they are only difficulties arising during the transitional period. In my respectful submission, given those circumstances, the provision in the Bill as it stands contains sufficient safeguards.
Lord Prys-Davies: The noble and learned Lord the Lord Advocate is right in that there is the safeguard of the affirmative resolution of both Houses of Parliament. Nevertheless, the feeling in Wales is that there ought to be an external source of advice to the Secretary of State. But in view of what the noble and learned Lord said, I do not propose to press the matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Elton Lord Elton moved Amendment No. 76:
Page 23, line 18, leave out from ("authority") to the end of line 20.
The noble Lord said: Clause 29, which we have just agreed should stand part of the Bill, provides an opportunity for the Secretary of State to make arrangements when it seems to him:
"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 council in relation to the exercise of those functions".
Clause 30 sets out what he does when that recourse has failed:
"Where a direction has been given by the Secretary of state under Section 29 but it appears to him that …it has proved … are not working".
My noble friend told me that the arrangements under Clause 29 could be, but are not intended to be permanent. However, that provision does not apply to Clause 30. In that clause at subsection (3) (at line 18 of the Bill) we find that they are to work:
"from a date specified in the order establishing the authority until such alternative arrangements for the exercise of the functions as appear to the Secretary of State to be satisfactory are brought into force".
In other words, it is a definitely a time limited action.
On Monday evening several Members of the Committee shared, with obvious strength and conviction, my fear (born of experience under the Local Government Act 1985 which abolished the metropolitan county authorities and broke them up into smaller authorities) that the successor joint authorities—that is, those bodies that were designed to discharge functions which are too large to be effectively carried out by the smaller successor authorities jointly—proved in effect to be numerous at the outset but, with one exception, to have all folded for reasons of political difference or financial difficulty thereafter.
I move this amendment as a probing amendment at this stage. It seems to me that if my noble friend and his

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right honourable friend are not able to meet the worries expressed on Monday night along the lines suggested then, it will be necessary to fall back with some dissatisfaction but not yet with despair on something of the kind that I now propose; namely, to leave out the words:
"until such alternative arrangements for the exercise of the functions as appear to the Secretary of State to be satisfactory are brought into force".
Thus it is made possible to have a permanent solution, if not under Section 29 then under Section 30.
The fear that the voluntary arrangements made at the outset will collapse at a later stage is a real one borne of actual experience of similar provisions in the past, with costly and unfortunate results. I hope that when my noble and learned friend meets with his right honourable friend the Secretary of State to discuss the amendment moved on Monday, he will not advance Amendment No. 76 as the preferable alternative. It is the less desired alternative and at this stage I move it in a probing spirit. I beg to move.
Lord Williams of Elvel: When we discussed Clauses 28 and 29 the noble and learned Lord said—I am paraphrasing—that we were embarked on a ladder: we started off on the lower step of information in Clause 28; proceeded to the slightly higher step of 29, and now the highest step of all in Clause 30. Indeed, Clause 30 sets out power for the Secretary of State to establish what I can only describe as a quango. If there is failure to set up a joint authority then, under the clause, the Secretary of State may provide for joint authority as he wishes.
The noble Lord, Lord Elton, in moving the amendment—and I accept that it was a fallback amendment—said that he would like that arrangement to become permanent; that he did not want it to lapse; that it was important to have stability. I see no problem with things being permanent when they are sensible and democratic. However, I see a problem with permanence in the context of Clause 30. That is why I hope that the noble and learned Lord will be able to satisfy the noble Lord, Lord Elton, that his amendment is not entirely well conceived.
Lord Elton: Perhaps I may respond. I may have misunderstood what my noble and learned friend undertook to do in relation to the noble friend of the noble Lord, Lord Williams, a moment ago. I thought that it imported a democratic element into the arrangement which would make it more acceptable to the noble Lord opposite and thus make it more acceptable to the Committee generally.
Lord Rodger of Earlsferry: Taking up the last point, I indicated that it was my intention to come back at Report with an amendment which would ensure that the joint authority would be drawn exclusively from local authorities rather than from people appointed from outside. I understood that that was the spirit of the amendment moved. I hope that that reassures the noble Lord to some extent as to the nature of the joint authorities.
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Whether one calls them a series of escalating powers or something else, I stress that it is not the ambition of the Secretary of State that he should climb this particular mountain, reach the pinnacle and establish a joint authority. On the contrary, his hope is that the use of the information powers will be sufficient, failing which, he will use the Clause 29 powers. It is only if that fails and he is faced with a serious situation which requires the use of the powers in Clause 30 that that would be invoked.
In reply to my noble friend Lord Elton, because of the kind of situation envisaged for its use, it is intended that Clause 30 will be used to provide what it is hoped will be a short-term solution to an immediate service delivery problem. For that reason, I cannot accept the spirit of the amendment which seeks the effect of ensuring that, once established, a joint authority should remain permanently.
Again I stress that the Secretary of State has no desire for the joint authorities to continue longer than is necessary. On the contrary, the intent is that they should remain until satisfactory arrangements for the exercise of the function, as it appears to the Secretary of State, are brought into force. It is for that reason that they are envisaged as temporary rather than as permanent expedients. Whatever may or may not be the merits of the matter we were discussing on Monday evening, it is envisaged that this power will be used in the way I indicated. A power of the kind envisaged by my noble friend Lord Elton would be a much wider one than the power under the Local Government Act 1992 and would run counter to the general thrust of the Bill—that functions should be retained by the new unitary authority wherever possible.
Lord Williams of Elvel: I agree with the noble and learned Lord. I am sorry again to oppose the noble Lord, Lord Elton. Although the noble and learned Lord gave an assurance that any members of the joint authority would be elected members at the time the Secretary of State sets it up, they may be de-selected or not selected. If they were made permanent or if a new political party or a party of different persuasion were incorporated, the situation would become extraordinarily complex. On the whole, the Bill is right that these authorities should be temporary until such time as the Secretary of State is satisfied that the proper authority is set up.
Lord Elton: I am somewhat gratified to have achieved a much more difficult task than that to which I set my hand. I was prepared to persuade my noble and learned friend to accept a simple proposition, which I thought was easy. Far more difficult, I have got the noble Lord, Lord Williams of Elvel, and my noble and learned friend to agree together. However, it was not exactly in the direction I wished them to do so.
The position is less better than it might be. Amendment No. 76 is a probing amendment addressing a specific issue. I am comforted that when my noble and learned friend thinks about this matter after dinner tonight, he will recollect that in his answer to Amendment No. 71 he quoted as a virtue that the scheme in the Bill gives,
"a degree of permanence and assurance,"

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to the Welsh scheme which is not available to the Scots. It is therefore clearly something to be sought, particularly when we are dealing with the Welsh. I hope that the Committee will try and set a distance—I can assure noble Lords that it is appropriate—between political philosophy and the importance of devolving decisions, and the realities of life, which is the importance of services being properly run.
I do not want to repeat the catalogue I gave on Monday night of the things which trading standards officers are required to do and to protect their masters, the public, from. They are legion; and some of them, if not properly carried out, imperil the lives as well as the welfare of the public. It is therefore important that that function is properly carried out and it cannot be properly carried out by small fragmented services. That is why it is considered by the Institute of Trading Standards Administrators—in which, I repeat, I declare an interest, though not a pecuniary one, as the vice-president—that there should be a proper arrangement in place permanently after the change in local government brought about by the Bill and not in a form which can be fragmented and eroded as it has been in England in the metropolitan areas following the Local Government Act 1985. Because those areas are larger, the effect has merely been to reduce efficiency and increase costs. In Wales, where the fragments may be a great deal smaller, the costs would be enormous and the loss of protection to the public would be real and dangerous. It would be no use invoking a retrospective power after, for instance, the widespread sale of meat contaminated with bovine spongiform encephalitis—otherwise known as mad cow disease—over the butchers' counters of Wales. The public would not forgive the Government if a disaster of that kind, or others which might occur following fragmentation, were to take place because a local authority was trying to function on its own with three, two or even one professional trading standards officer carrying out the requirements of 70 Acts of Parliament and some 500 statutory instruments.
I hope that my noble and learned friend is now seized of my point. I apologise for making it to him twice but the support I had on Monday night suggests to me that I ought to remind him of it so that he takes it to the Secretary of State. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 77:
Page 23, line 38, leave out sub-paragraph (ii).
The noble Lord said: If subsection (5)(c)(ii) remains in the Bill, then on the dissolution of the joint body the assets could flow away from the original council or indeed could flow away from local government. It is conceivable under the subsection as it stands that the property could be transferred to an NHS trust or to a body in the private sector. I should be grateful if the noble and learned Lord could give us an indication of what destination the draftsman had in mind when he prepared the subsection. I beg to move.
Lord Rodger of Earlsferry: The amendment would take away the ability under this clause for an order to make provision for a scheme whereby the rights, liabilities, and so on, would go to any body established following joint arrangements by any of these councils. It has been thought that in certain circumstances a joint authority might decide that the appropriate solution to a service delivery problem might be to establish a body such as a local authority company to assume responsibility for all or part of the service in question. That would be a decision entirely for the joint authority. The provision to which the noble Lord has drawn attention would provide the mechanism for such a body created by a joint authority to inherit the property and rights it would need to do the job.
Whether this is actually a necessary provision and whether the contingency is sufficiently real is a matter on which I should like to reflect and come back perhaps on Report. Those are the circumstances for which the provision was designed.
Lord Prys-Davies: I am grateful that the noble and learned Lord is prepared to have another look at this clause. With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 30 shall stand part of the Bill?
Lord Prys-Davies: It would be wrong to allow Clause 30 to be accepted without registering our strong objection to the clause. We would ideally seek to remove the clause from the Bill because if it is exercised it could lead to a range of quangos being established in the Principality. The Committee heard on Monday of our opposition to the public sector in Wales being transferred to the quangos.
Under this clause radical changes could be brought about. If we are landed with it at the end of the clay it would be easy for the Secretary of State to increase the number of quangos and extend their role. Under the clause the local authorities and the people of Wales are concerned that the Secretary of State could take a normal local authority function right out of local government control. That stands out a mile. We would seek, either here or in another place, to stop the executive from taking over more functions.
I do not want to press the matter any further, but I think it would be wrong to proceed to the next clause without registering once again our strong objection to the clause remaining in the Bill.
Lord Hooson: I entirely support the views expressed by the noble Lord, Lord Prys-Davies, in this respect. I have been thumbing quickly through the Scottish Bill and I have not found a similar clause. Am I right in that? Does the noble and learned Lord know the answer?
Lord Rodger of Earlsferry: I shall write to the noble Lord, Lord Hooson, if I am wrong but I believe there is a corresponding kind of power for Scotland. It is not the case that the Secretary of State is itching to use this power. I have tried to explain that it is very much a power of last resort and is quite specifically designed only to set up these joint authorities where there is a

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perceived need for them subject to parliamentary control and where it is clearly stated that they are to continue only until such alternative arrangements as appear satisfactory are brought into force. Given those circumstances about the clause, it is an appropriate reserve power for the Secretary of State to have during this interim period. In my submission, the clause should indeed stand part of the Bill.
Clause 30 agreed to.
Clause 31 [Decision making procedures of new principal councils: experimental period]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 78:
Page 24, line 16, at end insert:
("( ) An order under this section which relates to section 15 of the Act of 1989 may provide for that section to cease to have effect only to such extent as may be specified in the order.").
The noble and learned Lord said: Clause 31 provides a facility which would enable local authorities in Wales to experiment with alternative forms of political management, within the framework provided by the existing system. This clause and Clause 32 represent the Government's response to the views they received on their consultation document Internal Management of Local Authorities in Wales, published by the Welsh Office in July 1991. At that time several authorities expressed an interest in having some degree of experimentation, particularly with regard to the setting up of single party committees to provide a cabinet style of political management.
If a council wished to conduct an experiment, it would have to apply in writing to my right honourable friend the Secretary of State and among other things would have to provide evidence that a scheme would provide for efficient, effective and accountable local government. The "experiment" would work by the disapplication of either or both of the existing statutory provisions which require a local authority: to allocate seats on its committees according to the political balance of the authority as a whole; and to establish a social services committee. If those were disapplied, it would allow the creation of single party committees and allow an entirely free hand to the council in determining the committee structure.
The Government's amendment is intended to make it clear that the political balance requirement in Section 15 of the 1989 Act will be disapplied by the Secretary of State only in respect of certain specified committees to be set up to provide a "cabinet" style of political management. This would bring into the open and so make accountable a state of affairs which, as the Committee will know, exists already in many councils, but tends to exist in effect behind closed doors. As currently drafted, the Bill could have the effect of enabling an authority to create single-party committees in all parts of its organisation.
It is not the Government's intention to approve schemes which propose disapplying the political balance requirement for all the committees of a council. The amendment gives effect to that intention. It is, after all, only an experiment. Authorities experimenting with single party committees would be expected to balance
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this by establishing scrutiny committees retaining the political balance requirement. If it became apparent that, under the experimental arrangements, inadequate checks were operating upon the single party committee or committees then, as the Committee will see, the Secretary of State will be able to use the power accorded to him under subsection (4) to revoke the order establishing the scheme. The Committee will also notice that the experimental scheme can last for no more than five years. It will also have been noticed that they are subject to the affirmative resolution procedure. I beg to move.
Lord Prys-Davies: I have followed as carefully as I could the words of the noble and learned Lord the Lord Advocate. I am sure that this is a matter to which we may well have to revert hereafter. I have no further comments at this stage.
On Question, amendment agreed to.
[Amendment No. 79 not moved.]
Clause 31, as amended, agreed to.
Clauses 32 to 35 agreed to.
Clause 36 [Council funds for new principal councils]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 80:
Page 29, line 17, at end insert:
("( ) The Secretary of State may make regulations—

(a) requiring assets of a prescribed description which fall within a council fund to be held in a separate fund within the council fund;

(b) requiring any fund (other than a trust fund) of a prescribed description which is established by a new principal council to be maintained as a separate fund within their council fund.").

The noble and learned Lord said: Clause 36 would require each new authority to establish a council fund. The provisions set out in this clause are based broadly on existing provisions in the Local Government Act 1972 and the Local Government Finance Act 1988.
This amendment would add a new subsection to Clause 36. It would carry forward to the new council fund system powers which the Secretary of State has under Section 92(2) and (3) of the Local Government Finance Act 1988 with respect to the general fund. The amendment will not add to the Secretary of State's powers because Section 92 of the 1988 Act will not apply to Welsh unitary authorities, by virtue of paragraph 2 of Schedule 10 to this Bill.
Although the Government do not presently have any specific plans to use the regulation-making powers which would be conferred by this amendment, it might be of assistance if I were to explain the circumstances in which it might become necessary to use them.
One possibility is that of future changes to the local government finance system, which of course cannot be predicted. Such changes might lead the Secretary of State to conclude that authorities should establish separate funds within their council fund for certain assets. Another possibility for the use of the power could be that of, say, a fund being established by a local authority in response to an appeal for the victims of a disaster. In that situation the Secretary of State might conclude that such a fund should be a separate fund within the council fund.
Such powers now exist with respect to the general fund and I hope that the Committee will agree that there is no reason why they should not apply to the new council. I beg to move.
On Question, amendment agreed to.
Clause 36, as amended, agreed to.
Schedule 10 agreed to.
Clauses 37 and 38 agreed to.
Schedule 11 [The Residuary Body for Wales: Corff Gweddilliol Cymru]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 81:
Page 98, line 45, at end insert:
("( ) Any direction under this paragraph shall ensure that sums received by the Residuary Body in respect of any land or property are returned in full to the principal council or councils whose areas include the whole or a part of the area of the old council from which the land or property in question transferred to the Residuary Body.").
The noble Lord said: This amendment is more of an icon than an improvement. It seeks assurance that the Corff Gweddilliol Cymru (the Welsh Residuary Body) will indeed act like a good quango and not like a bad business, but it signals, at a deeper level, our unease about the activity of the body under its present terms of reference.
The residuary body itself—the tool, the creature, the poodle of the Secretary of State—has powers which are unfettered, save by audit, over a vast range of acquisitions and disposals, and there is no mention, so far as I can see, of any appeal against any decision it may take except, I suppose, to the Secretary of State—a circular argument because he is the creator, provider, judge, jury and disposer in his own case.
Is it any wonder that, faced with this undemocratic dinosaur, we on these Benches, we on this side of the House —indeed, from one end of Wales to the other—who represent for the moment the millions in England soon to be faced with the same kind of control by Conservative quangos, are apprehensive of the dominance that we shall be powerless to control.
This amendment—this rather token amendment— seeks only to receive assurance as to how the residuary body will ensure that receipts of land or property will be returned without delay and without abatement, whence they came.
The present wording requires the residuary body to distribute receipts among principal councils as the Secretary of State directs. However, as the Bill stands, a receipt that originated from an asset held in Gwent could be paid to Anglesey County Council. So our amendment constrains the residuary body to paying receipts to those new councils within the area of the previous council which originally held the relevant asset. I think that that tightens things up and makes things a little more sensible. I beg to move.
Lord Rodger of Earlsferry: Although it has been said that this is yet another quango, it is in effect a body which is precederited in local government reorganisation, which is a necessary part of such a reorganisation scheme and which, of course, has a very limited life
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indeed in accordance with the provisions of the schedule. So it is not a case of the Government seeking to set up some long-lasting quango.
However, I am happy to give the noble Lord the assurance that the Secretary of State does intend to use the powers given to him in this paragraph in the way in which the noble Lord indicated.
A receipt for an asset should be returned to the council or councils whose residents contributed towards the acquisition or maintenance of the asset during the past 20 years. For example, if a county hall were to be transferred to the residuary body and sold, the receipt should be shared among the new councils whose areas are wholly or partly within that present county.
The Secretary of State would have the power to direct what proportion of a receipt should be paid to each authority. It would not be practicable to set out all the possible proportions on the face of the Bill. But the Government's intention is that the receipt should usually be split in proportion to population. I hope that these assurances will reassure the noble Lord.
Lord Morris of Castle Morris: I reluctantly concede the necessity of this meteoric quango which will be here tomorrow and gone the next day. I hope that I did not mislead the Committee in any way into thinking that I was totally against this quango or indeed any other quango. I just oppose the idea of bad quangos and quangos which are too powerful, as so many of us did yesterday afternoon. I am pleased, delighted and surprised at the assurance that the noble and learned Lord the Lord Advocate has been able to give.
Such is my ignorance of the processes of the law that I would welcome the final bang of the hammer on the nail if the noble and learned Lord could assure me that what he has just said will be binding in some way upon the Secretary of State and all subsequent Secretaries of State of whatever party. If he can give me such an assurance, I shall seek to withdraw the amendment immediately.
Lord Rodger of Earlsferry: It is difficult for me to give an assurance which will bind the Secretary of State's successors, whatever the party. Plainly, however, I did not give such a statement to your Lordships without that being the declared policy in respect of this matter. That is the way in which it is intended that the power should be used. The Committee will bear in mind that it is envisaged that these things will all occur within a relatively short time. Perhaps therefore your Lordships will be optimistic enough to think that the present Secretary of State will be in a position to execute his policy.
Lord Morris of Castle Morris: I am afraid that it is possible that the Secretary of State may not be replaced by someone of a different political complexion in the time that one might hope. Nevertheless, I am grateful to the noble and learned Lord, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 11 agreed to.
Clause 39 [The Staff Commission for Wales or Comisiwn Staff Cymru]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 82:
Page 30, line 33, leave out sub-paragraph (ii).
The noble Lord said: I understand that the functions of the staff commission, as set out in Clause 39, follow earlier precedents, except for sub-paragraph (2) (b) (ii), which is new. By virtue of the new provisions, the commission is to consider and keep under review,
"the organisation, management and remuneration of the staff of the new principal councils".
However, that was not the theme of the White Paper. On this matter, the White Paper was quite clear: it would be for the new authorities to determine
"their organisation, management and staffing requirements".
Those words come from paragraph 5.4 of the White Paper, if I may once again refer to that document. However, if the staff commission is now to be allowed to influence or indirectly to control the organisation, management and staffing requirements of the new councils, paragraph 5.4 of the White Paper is empty of meaning. There is no reference to that role in paragraphs 5.8 to 5.11 of the White Paper, those being the paragraphs which set out the functions of the staff commission. Nowhere in those four paragraphs—now-here in the White Paper—is there any reference whatsoever to the right of the staff commission to,
"consider and keep under review…the organisation, management and remuneration of the staff of the new principal councils".
If that role is now perceived to be relevant, local authorities in Wales are puzzled about why it was irrelevant in the eyes of the author of the White Paper 10 months ago.
Given the assurance of the White Paper that the staff commission should not be given that role, where exactly do we go? Councillors and officials in Wales have made apparent their great anxieties if Clause 39(2) (b) (ii) is to remain in the Bill. There is a danger—I put it no higher than that—that the role of the councils in determining their organisation and management will be devolved. I wonder whether the noble and learned Lord the Lord Advocate can reflect on sub-paragraph (2) (b) (ii) and say where it has come from because nowhere and at no time had it been discussed with the local authorities prior to the publication of the Bill. I beg to move.
Lord Stoddart of Swindon: While I hesitate to intrude in a Welsh Bill, I suppose that having been born in the Rhondda I might have some entitlement, but perhaps not very much—
Noble Lords: No, no—
Lord Stoddart of Swindon: Bearing in mind the excellent place—
Lord Hooson: I am sure that the noble Lord appreciates that, like England, Wales is now a member of the Common Market.
Lord Stoddart of Swindon: Yes, unfortunately, although when we had the referendum in 1975 Wales voted against remaining in the Common Market so, as usual, the Welsh were rather ahead of the English in making good, decent and long-term decisions.
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However, that is another matter and we had better stick to the amendment which was so ably moved by my noble friend Lord Prys-Davies.
I must declare my interest in that I am an adviser to UNISON which, as a trade union, is very concerned about the operation of this sub-paragraph. It seems to me that although there is general support for a staff commission, the sub-paragraph seeks to give the commission a power over wages and conditions which it ought not to have. Indeed, the powers which are being given here seem to exceed the powers which have been given to any other similar commission which has been created to deal with previous reorganisations.
Organisation and management are properly matters for the local authorities themselves to decide. In making decisions, councils already have to take account of legal requirements, guidance from the Welsh Office and recommendations from other bodies such as the Audit Commission. The remuneration of staff is covered by existing agreements and is set down in the manuals on conditions of service which have been agreed between employers and unions.
It is essential to note that this sub-paragraph, coupled with other provisions in the Bill, seems to be a further centralising measure. As the Committee will know, as a former leader of a local authority, I am very much against the further centralisation of local government. There has been far too much centralisation already. What is more, as a former member of NALGO and as a negotiator at every level —local, regional and national, through the National Joint Council of the Electricity Industry—I am very concerned that these provisions will impose upon negotiators conditions which will not be acceptable to them. Indeed, as I see it, the provisions will undermine the very right of negotiators on both sides—on the management side as well as on the employee side—to negotiate proper wages and conditions of service. That must give cause for great anxiety.
It may very well be that I have completely misunderstood the thing—
Lord Prys-Davies: No.
Lord Stoddart of Swindon: My noble friend says "No", and I am glad to have his encouragement. If my interpretation is right, I sincerely hope that the noble and learned Lord will get to his feet to say that he shares our worries about such interference in the proper negotiating rights of trade unions and employing authorities. If he does so, I sincerely hope that he will accept the amendment, which is a good one which will very much improve the Bill.
6.30 p.m.
Lord Rodger of Earlsferry: I regret that I am likely to disappoint the noble Lord, Lord Stoddart of Swindon, in that I am unable to accept the amendment. It is correct to say that this is not a provision which appeared previously in relation to equivalent bodies; it is also correct to say that it is not something, as the noble Lord said, which appeared in the White Paper. But merely because something is not precedented that does not mean that it is not appropriate. Of course, as I have

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stressed repeatedly at the various stages during the debate, the Secretary of State has been continuing to form an opinion in the light of consultations.
My right honourable friend the Secretary of State has concluded that a provision of this kind which merely provides that,
"The Commission shall … consider and keep under review (i) the organisation, management and remuneration of the staff of the new principal councils",
is an appropriate safeguard. The words, "organisation, management and remuneration" were chosen carefully. On the one hand, the words "organisation" and "management" reflect in some measure the terminology in Clause 25 in relation to service delivery plans. On the other hand, the proposal in relation to remuneration is intended to signal that the Government do not see reorganisation as providing an opportunity to increase current levels of local government pay. That provision arises partly out of the experience of previous reorganisations when increases in staff costs were notorious. The provision therefore reflects the Government's determination to ensure that the new authorities do not create unnecessarily complex staffing structures or pay their employees inflated salaries, especially at senior levels.
The Government would be open to criticism if reorganisation —which after all is intended to establish new and, to some extent, innovative, local authorities, delivering services in an efficient and responsive way—were accompanied by growth in local bureaucracy. Local authorities should be judged primarily upon the quality and efficiency of the services they provide and whether they give local taxpayers value for money.
I cannot accept an amendment which would have the effect of removing from the staff commission the power to keep under review the staffing costs of local government in the period immediately after reorganisation. Again I stress that this is a body which is limited in time. Its powers fly off, of course, once its time comes to an end. We are not dealing with something that is put in place permanently, but something which will be there for the interim period.
Lord Stoddart of Swindon: The noble and learned Lord has confirmed my worst fears. It is clear that the Government intend to interfere with negotiating arrangements and agreements reached between employers and employees. That must surely be unacceptable in a Bill of this kind which reorganises local government. Besides, it must be against the Government's own policy. For a long time now, the Government's policy has been to allow local negotiators to negotiate and come to agreements on a local basis. Here, we are not talking about a local agreement between employers and employees but an imposition by government of a wage structure which might be completely inappropriate to a local authority in any particular area.
After all, what are local authorities about if they are not allowed to make the arrangements for their own area? I thought that local government was about local government and local organisation. Here we have "big brother" government saying what sort of organization
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these new local authorities shall have, and even telling them what remuneration they should pay, what level of staff they should have, and, presumably, what conditions those staff should work under. That is unacceptable in a democratic society. I find it amazing that in a Bill which the Government say will reorganise local government in Wales on a better basis, the Government and the noble and learned Lord should blot the copybook in the first place and set local authorities off on a bad organisational start.
Lord Rodger of Earlsferry: I do not know that there is much that I can add. I merely repeat that the purpose of the provision is to give the commission power to consider and keep under review these matters just as it is given the power to consider and keep under review various other matters. I do not hear objection to that as interference. I consider that in the same way it is proper, for the reasons that I have given, that the matters to which I have referred should be kept under review.
Lord Prys-Davies: I am grateful to my noble friend Lord Stoddart for his powerful support. I listened carefully to the noble and learned Lord. He did not explain to my satisfaction how it is that the Government have departed from the White Paper position. He told us that the words, "organisation, management and remuneration" reflected the wording in Clause 25. What is more significant in our view is that the wards are the words which were used in the White Paper. The noble and learned Lord said that there had been discussions. This provision has not been the basis of discussions with the local authorities or the trade unions, so with whom has it been discussed?
Lord Rodger of Earlsferry: If I used the word "discussions", I did not intend to suggest that they had been with the people to whom the noble Lord referred. I meant that in the light of all the various considerations which have come to the Secretary of State and the various consultations that he and his officials have had, and as the result of discussions he has had with his officials and so on, he has come to the conclusion that it is an appropriate power to include for the reasons that I have given.
Lord Hooson: Does the noble and learned Lord agree that the wording here is unfortunate? It is ambiguous to say the very least. Will he undertake to look at the provision again? The wording suggests a power of intervention over the organisation, management and remuneration. I should have thought that that was clearly not intended. If the commission is merely advising the Secretary of State, surely the wording can be amended?
Lord Rodger of Earlsferry: I take comfort from the words:
"considering and keeping under review"
which are the governing words. The commission is considering and keeping under review the organisation, management and remuneration of the staff. I do not see that those words are more ambiguous in connection with that provision than with other matters which are to be considered and kept under review.
Lord Prys-Davies: I do not draw any comfort from the noble and learned Lord's last intervention, because assuming that the staff commission is concerned about the organisation, management and remuneration policies of a certain council, it should not be overlooked that, by virtue of Clause 39(2), the staff commission may advise the Secretary of State on what is happening. The Secretary of State may then issue directions to a council which has failed to comply with the advice given by the commission. So it is not merely an advisory role in an indirect way; the staff commission's advice can be implemented by the Secretary of State. I should have thought that the noble and learned Lord may wish to reconsider whether the wording which departs from the White Paper is still feasible.
Lord Rodger of Earlsferry: The noble Lord, Lord Prys-Davies, will notice that the matters are to be considered and kept under review. That is all that we are concerned with here.
Lord Prys-Davies: We cannot press the matter further this evening. However, I wish to remind the Committee that subsection (2) must be read in conjunction with subsection (3). The position is unsatisfactory and that is abundantly clear to Members on these Benches. I am grateful to the noble Lord, Lord Hooson, for his support. In order to make progress tonight, I can take the matter no further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Schedule 12 [The Staff Commission for Wales: Comisiwn Staff Cymru]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 83:
Page 103, line 10, after ("Welsh-speaking") insert ("at least one of whom shall be a woman and at least one of whom shall be approved from a list of suitable persons nominated by the Trades Union Congress.").
The noble Lord said: I come to the Committee as a supplicant to beg. I realise that the amendment may look like an anomaly and that it might be thought to set a precedent. I realise that it would rend from top to bottom the seamless robe of the Secretary of State's unfettered power to appoint whomsoever he likes to any executive body. Perhaps I may try to persuade the noble and learned Lord that this is something of a special case.
The staff commission will deal with more than 100,000 members of staff, a large percentage of whom will be women. The employment needs and problems of women members of staff are many and various. I hope that I shall not be accused of sexist prejudice in saying that often those are different from those of men. Career patterns are often different for women. Geographical movement is often unpredictable for women who may be asked to change their places of work for perfectly good reasons. Of course, only women can have babies; that is one of the things that makes them different from men.
We believe that a woman member of the commission would be able to bring sympathetic and informed understanding to the many and difficult problems which women in this workforce will face. She could bring
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special expertise to the work of the commission. A woman member would not be vital to the successful working of the commission, but we maintain that she would be an improvement.
The same argument about special expertise applies to the experience, knowledge and training which the TUC could offer to the establishment of what we should like to see as the best possible commission. The TUC could provide a list—it could be a very long list—from which the Secretary of State could make his purely personal choice. We believe that the amendment would improve the likelihood that the commission would do the best possible job because with such concessions it would be all the more likely to act with the consent of the workforce. For this I plead, and for this I beg to move.
Lord Stoddart of Swindon: I support the amendment. I am not usually in favour of statutory women; I believe in women but not in statutory women. It is an insult to them. However, on this occasion there is a specific case to be made for ensuring that at least one member of the commission is a woman. My noble friend pointed out that more than 50 per cent. of the staff of local government in England and Wales are women. Indeed, the number is increasing every year. It is essential that their point of view and their needs are put when the commission is considering the future of local government and its organisation in Wales. In the light of our previous discussion on the Staff Commission—it will be able to make recommendations about remuneration—it is more essential than ever that we have a woman member of the Staff Commission.
I hope that the noble and learned Lord will accept this simple and necessary amendment. If he wants us to go home happy tonight, and if he wants a good and conscience-free weekend, this is a simple amendment to concede. I hope that he will do so or at least give the assurance that, irrespective of the amendment, there will be a woman properly appointed to the Staff Commission.
Lord Hooson: I too support the amendment for the reasons given. In Wales in particular a degree of positive discrimination is sometimes necessary, as is indicated here. I am sure that the noble Lord, Lord Stoddart, greatly regrets that this country did not adopt the Social Chapter in the Maastricht Treaty. I understand that if we had, the amendment would not be necessary.
6.45 p.m.
Baroness White: Will my noble friends explain what will happen if one has a Welsh-speaking woman? Will there then be two?
Lord Morris of Castle Morris: We have, of course, considered the matter carefully and at great length. Our just and non-negotiable demands would be fully satisfied if there were a woman who was Welsh speaking and also on the trade union list.
Lord Rodger of Earlsferry: I accept that behind the amendment a serious point is being made. I also accept that, all things being equal, it is desirable to have a woman member of the commission. However, for the reasons anticipated, I cannot accept the amendment. I

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cannot accept that my right honourable friend's discretion in selecting members of what will not be a large body should be restricted in this way.
For that reason, I am unable to send the noble Lord, Lord Stoddart, home for the weekend as happy as I should like. Nonetheless, perhaps a measure of happiness can be given if I say that the Government are entirely sympathetic to the aims of the amendment. My right honourable friend would be willing to consider, for example, suggestions from Members of the Committee and others about possible candidates who fall within these groups for appointment to the commission. My right honourable friend accepts that it is important to have a blend of people with the necessary specialist expertise. I do not know whether I have eased my own conscience, but I hope that a measure of happiness has been introduced.
Lord Morris of Castle Morris: I thought that I should not do so well with this amendment as I have with others; but I must accept what I am offered. I stress that this is in no sense "tokenisation". Like my noble friend Lord Stoddart, I violently oppose the idea of the token woman just as I oppose the idea of the token black person, the token Welsh person or the token trade unionist. That is not what we are about. However, we considered that there was a special case in this respect, in particular for a woman representative on the Staff Commission. I am saddened that the noble and learned Lord cannot come all the way with me. However, I am relieved that he has given me words of comfort rather than despair. Therefore, the mendicant need not go away totally empty-handed, as I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 agreed to.
Clause 41 [Transfers of staff]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 84:
Page 31, line 27, leave out ("designated") and insert ("relevant").
The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 85 to 90. I have even less in the way of Welsh credentials to speak in this debate than my noble friend Lord Stoddart. All I can claim is that my family came from Mid Wales and rejoiced in the good old Welsh name of Price.
It will be obvious that a Bill of this kind, containing as it does a sweeping restructuring of local government in Wales, is bound to cause concern to the staff involved as regards their future. Clause 41 sets out what is being proposed in regard to the transfer of employees. A note from the Welsh Office dated 30th November, which I have seen, says that it empowers the Secretary of State to transfer staff by order. The staff can be transferred from an existing district, county council or joint board which ceases to exist because of Clause 56 either to a new unitary authority or, exceptionally, to a residuary body.
It would appear from the notes that all terms and conditions existing at the point of transfer will be preserved. They state further:
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"The Welsh Office's present expectation is that the vast majority of staff employed by county and district councils in March 1996 will be transferred by Order".
But that has given rise to considerable concern among the unions representing the staff. They ask what is meant by the "vast majority". Which categories of staff will be transferred and which not transferred? Why cannot all the existing staff be transferred?
The object of the amendment is to provide under new subsection (1A) that:
"The Secretary of State shall by order make provision for the transfer of every relevant employee from an abolished body to a new employer".
That will have the effect of ending the uncertainty with which staff view their prospects in the light of the Bill.
I need hardly remind the Government or the Committee that unemployment is a scourge which affects all parts of the country, not least Wales. Many older employees deprived of their employment may well not work again. I cannot believe that restructuring of the kind envisaged by the Government is sensible if one of the effects is to add to the numbers qualifying for unemployment benefit. Fear of unemployment is also a scourge. It is likely to lead to depressive illness and, sometimes, family breakdown.
The financial effects of transferring all staff are quite positive. It is true that some of the revenue gains are postponed. However, transitional costs are also postponed and diminished through extended opportunities for redeployment. There will be many opportunities for the redeployment and retraining of staff to cater for the needs of the new authorities. Providing for the transfer of all relevant employees allows the possibility of realising such opportunities. Maximising the opportunities for redeployment will reduce substantially the costs of reorganisation.
The new authorities will need time to determine their most efficient and effective management structures. Allowing all staff to transfer creates the opportunity for those structures to be the subject of full consideration and consultation. The demands on managers will remain at a high peak for several months after the transfer. There are advantages in avoiding redundancies when the experience and expertise of existing managers will be most useful. It is essential to avoid the costs of employing temporary assistants just after expensive redundancies have taken place.
Another aspect which is of concern to us is the mention in the Bill of the so-called frustration doctrine in regard to those contracts of employment. I imagine that that has normally been utilised only in situations in which there has been frustration in employment contracts either through illness or imprisonment. We cannot accept that idea which is built into this legislation.
As I said at the beginning, I emphasise that this matter is of enormous concern to the staff and trade unions. There is a great deal of uncertainty about the future. Therefore, I hope that the Government will be willing to look with favour this evening upon the suggestions that we make in the amendments. I beg to move.
Lord Hooson: There is a great deal of sense in the matters put forward by the noble Baroness. This will be the second great shake-up of local government within a period of just over 20 years. Of course, the anxieties of the staff are enormous.
As I understand it, with the reduction of the number of authorities, the staff most threatened with redundancy are the so-called "central office" staff—those on whom the smooth transition will most depend. By and large, officers in the field are more secure as regards their future than those working in central office. I have not considered the matter in any depth but the noble Baroness was extremely persuasive. It is important to remove that particular insecurity from the shoulders of those who will have the greatest responsibility for ensuring a smooth transfer of power.
The question of redundancies in the new authorities will arise but that can be dealt with at the appropriate time. It is much more sensible to use experienced staff from existing authorities when the transfer is to take place rather than employing temporary staff, which would be essential in many cases. Temporary staff would have to be employed after redundancy payments have been made, and so on. I do not expect that the noble and learned Lord will be able to give a definitive reply this evening but I believe that we should return to this matter on Report after hearing what he has to say.
Lord Stoddart of Swindon: I hope that the noble and learned Lord, Lord Rodger, will take what has been said very seriously indeed. First, my noble friend Lady Turner is a very experienced former trade union official. Therefore, she knows exactly what happens in reorganisations and the difficulties that are caused.
I have not been a professional trade union officer but I have been a lay official, as I have said already, working at regional, local and national level. I worked in the electricity supply industry in which there were many reorganisations over a period of time. That period of reorganisation and the fears which staff had about the results of it caused the most heartache and the most difficulty. Moreover, it caused many problems for both professional and lay trade union officials because people could see that their livelihoods and futures were at risk.
Trade unions make industry work. The idea that trade unions do not help to oil the wheels of industry is absurd. Trade unions find that their ability to negotiate is impaired if they are under pressure from their members not to give away anything at all. In other words, they cannot be flexible.
I am sure that the noble and learned Lord will be sympathetic in this regard. It weakens the position of the staff. It may be that the noble and learned Lord wants to do that; I hope he does not. I hope that, like me, he wants to ensure that the staff who are transferred to the new authorities are satisfied and feel that they have been given a good deal by the Government, the staff commission and the local authorities. I hope that they will start their jobs in the new local authorities determined to make them succeed. In other words, I hope that they will not start their jobs feeling that they have been hard done by and resentful of the way in which they have been treated.
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I hope that the noble and learned Lord will take into account what has been said and that he will also take it very seriously. The issues involved are serious. I feel sure that he will want to ensure that the staff of local authorities in Wales will not feel hard done by and that they will work hard to make the authorities succeed. The noble and learned Lord can help them to do so by ensuring that they are treated humanely and properly.
7 p.m.
Lord Rodger of Earlsferry: The Government cannot accept the amendments. That is not because we are not concerned about the matters which have been raised, but really because we think that the way set out in the clause is actually better for the staff than the way envisaged by the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Stoddart of Swindon.
Perhaps I may outline in more general terms the system intended for staff transfers. Again, I should stress that members of the Committee must bear in mind what has been repeatedly said; namely, that the vast majority of staff in local authorities in Wales will transfer to the new authorities for the kinds of reasons given by the noble Lord, Lord Hooson. For example, schools will exist and teachers will have to teach in them. Therefore, teachers will have to be transferred. The situation is thus more likely to arise in areas specified by the noble Lord, Lord Hooson.
In a comparatively few cases—for example, in senior management posts—it is envisaged that the jobs in the new authorities will be filled on the basis of competition. There will be few such cases, but they are quite important. One can see that that is likely to happen. As for the remainder, such as teachers, social workers, direct labour organisation employees and so on, it is envisaged that the transfers would take place by means of the staff transfer orders referred to in the clause.
The way that the latter will be prepared is something along the following lines. As part of the process of preparing the service delivery plans (which are referred to earlier in the Bill) the shadow authorities will identify the staffing structures that they need to establish. They would of course be aware of the staff currently performing the services in the existing authorities. It is then envisaged that they would draw up draft transfer orders identifying the staff to be transferred. We expect those draft orders to be available, both to the staff and to the Staff Commission—which, as has already been said, has a role in the matter—in about November 1995. A period of consultation would follow prior to the orders being made, probably in February 1996.
We believe that such a timetable is important because the earlier such decisions are taken the greater the certainty that can be given to staff about their futures. That will mean that a period of very understandable anxiety caused by the reorganisation will be shortened.
That, in general terms, is the process that we envisage and which is provided for in the clause. The effect of the amendment would be to ensure that all existing staff are covered by staff transfer orders. That would mean that they would go over to the new authority and thus there would be no particular pressure upon shadow authorities

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to establish detailed staffing proposals at an early stage. It would mean there would be no particular pressure upon them to tell people at an early stage how they would be affected by the reorganisation.
The Government do not believe that the latter would be in the interests of the staff affected; nor, indeed, in the interests of good local government. In saying that, I do not for one moment deny that what we are dealing with here is a highly complex matter and one of crucial importance for those involved. It is precisely for that reason that the Secretary of State has already established a committee to advise him on staffing matters. It is on the basis of the advice from that committee, and consultations with other interested parties, that the fine details of the transfer process which I outlined will be established.
However, I can tell members of the Committee that the Secretary of State's objective is to establish detailed arrangements which, so far as possible, will ensure that, on the one hand, the new authorities do not have transferred to them more staff than they need to undertake their functions and, on the other hand, that the transfer arrangements treat staff from counties and from districts on the basis of equality. I have to point out that balancing those two elements may not be easy. However, I believe that the intention itself is one upon which all Members of the Committee can agree.
In conclusion, I must repeat that the Government do not accept the amendments. Under the Government's approach, the vast majority of staff would be transferred by means of the transfer orders. Where staff are excluded from that process, it would be on the basis of a clear and understandable justification of different treatment which the Secretary of State would be prepared to defend to Parliament. I should remind Members of the Committee that the orders under Clause 41 would he subject to negative resolution procedure. I see that the noble Baroness, Lady Turner, wishes to speak. I give way.
Baroness Turner of Camden: I am much obliged. Before the Minister sits down, would he be kind enough to say a little more about the people who will not be in the majority to which he referred? In particular, can he say what happens about people whose contracts of employment are said to be "frustrated"? Further, will there be any kind of appeals mechanism for such people?
Lord Rodger of Earlsferry: I believe that we shall deal later with the position relating to frustration in connection with other amendments regarding redundancy, and so on. However, broadly speaking, the provisions in the Bill are designed to ensure that people who lose their jobs as a result of their authority being abolished are put in the same position as those who are made redundant. In terms of the legislation, they would not fall within the categories of people who would be redundant in that sense. However, it is designed to give them the kind of rights which they would have in that situation as regards compensation and so on.
Inevitably there will be some dismissals in the process. I do not seek to deny that fact. However, the vast majority will transfer, although there will be some
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redundancies and some people will lose their jobs. On the other hand, what we are saying is that it is better for such a period (which will inevitably be one of uncertainty) not to be prolonged. What is really being said by some Members of the Committee is that people will be transferred to the new authorities but that they will not have any guarantee of finding themselves in permanent employment at that stage because the new authorities will then be considering what they should do with their staff.
It seems to us preferable that such decisions should be taken at an early stage. As I have indicated, we would expect the shadow authorities to think about the position, to produce plans and to identity the staff whom it is intended to transfer and therefore to end the period of uncertainty as quickly as possible. As I say, these amendments would simply postpone the decisions which should be taken before 1st April 1996 to after that date, and therefore would prolong the period of uncertainty.
Lord Prys-Davies: I fully understand that when we are dealing with the vast majority of the employees the position is acceptable. However, we are really concerned with a minority—perhaps a small minority—who will not be transferred. Will their position be precisely that of a redundant employee with all the rights that such a person is entitled to?
Lord Rodger of Earlsferry: I believe I was careful not to go quite that far, for the following reason. As the noble Baroness will certainly be aware, there are provisions for notification of redundancy in certain circumstances and there is a right to that notification. In the circumstance we are discussing there is no notification because, in the nature of the system we are discussing, the notification in one sense comes from the whole scheme. The point is there is no right to notification in this case. However, as regards compensation, I hope the terms are at least equivalent to the usual terms.
Lord Hooson: Will the noble and learned Lord give more consideration to the question of the performance of these employees in the transitional period? I imagine that most of them will be central office employees, for example the solicitors in each district council and the heads of other departments. They may all be potentially redundant, or they may feel that will happen to them. Yet, for the smooth transfer of power, their service will be absolutely essential. It seems to me there is a delicate matter to be considered here, in particular in relation to those authorities where area committees will be established. They will need staffing and if the area committees are not to be established until after the authorities have been in place for some time, that will create an uncertain position.
Lord Rodger of Earlsferry: The Government believe that the amendment we are discussing would risk giving to staff of the kind the noble Lord referred Ito what would in some respects be false comfort, because all it really states is that those staff would be technically transferred to the new authorities on 1st April 1996. The trouble is that the real decision on whether or not they

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would continue to be employed—whether or not those jobs were real jobs—would be postponed in effect, and therefore the period of uncertainty for those members of staff would be maximised rather than minimised. What we propose would mean in one sense that the bad news comes earlier to certain people. However, another way of looking at the matter is that other people receive at an earlier stage a genuine intimation of their future position. I believe that is a better system than one which would tend to give what might be a false signal.
7.15 p.m.
Lord Stoddart of Swindon: Before the noble and learned Lord sits down, I wish to make a further point. In reply to the question asked by my noble friend as regards whether the people we are discussing would enjoy certain provisions under the redundancy schemes, the noble and learned Lord said they would be entitled to everything except the period of notice. However, that period of notice is important. I believe it is 90 days. During that period the employee is entitled to be employed and paid. Therefore, under the terms of the Bill, those employees could lose 90 days' pay. Will the noble and learned Lord ensure that those 90 days will be compensated for by other means, such as increasing the redundancy payment? How will those people be compensated? Surely he does not intend that people should be placed at a financial disadvantage.
Lord Rodger of Earlsferry: What is envisaged here is that people will lose their jobs —if they do—at the time of reorganisation. We know that the reorganisation will occur in April 1996. It is at that point that the jobs we are discussing are likely to be lost. The period of notification I referred to is required to be given in certain situations not only to the employees but to others too. It is a notification of an intention to declare redundancies. In the situation which we envisage at the moment I do not believe the point mentioned by the noble Lord, Lord Stoddart, will arise.
Lord Prys-Davies: Will the noble and learned Lord explain why it does not arise? The employees will lose their jobs through no fault of their own. Why can they not be paid a sum of money in lieu of the notice which they would have otherwise received?
Lord Rodger of Earlsferry: The notification is a notification of an intention to declare redundancy. Here, if you like, all one would be saying is that there is an intention to declare redundancy, let us say on 1st April 1996. There is no intention of cutting short people's employment before that time. The councils for which those people work will continue to exist up until that time. We are discussing what will happen on reorganisation. Therefore I do not think that in that situation the problem that has been mentioned arises.
Baroness Turner of Camden: I am rather disappointed by the response of the noble and learned Lord the Lord Advocate. I do not accept what he says as regards our propositions being not as good as the Government's. I and my noble friends have said that we are concerned with what happens to a minority of people
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who may find that they have no jobs after 1996 when reorganisation occurs. That means that a number of people who are currently in employment will worry about whether they will have any future in local government. It seems to me that that is an unfortunate and unhappy position which would be avoided if our amendment were accepted by the Government. I do not see there is any great advantage in the Government's view that people are somehow or other better off if they are told they may be made redundant in 1996 if they comprise the minority we have discussed; whereas if they were transferred and later made redundant in our view they would then have the right of representation by unions and could perhaps deal with that issue when it arose.
I do not feel at all happy with what the noble and learned Lord the Lord Advocate has said this evening. It is not our intention to press the amendment now as it would not be appropriate to do so at this point in the evening. However, we shall certainly return to this matter on Report. It had not been my intention to move Amendment No. 90A this evening because if Amendments Nos. 84 to 90 had been accepted, rights under the Transfer of Undertakings (Protection of Employment) Regulations would have been satisfied. However, employees have rights under the TUPE regulations and we shall consider that matter and what has been said, and determine whether we can return on Report with another amendment which will have the effect of giving the employees whom we are out to protect the kind of protection to which we on this side of the Committee strongly feel they are entitled. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 90 not moved.]
Clause 41 agreed to.
Clauses 42 and 43 agreed to.
Viscount St. Davids: I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again at 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Mental Health (Amendment) Bill [H.L.]
7.20 p.m.
Lord Jenkin of Roding: My Lords, I beg to move that the Bill be now read a second time.
It is a very short Bill, it is straightforward and it is a very necessary Bill. It enjoys the support of all of the voluntary and professional organisations concerned with mental health. I am particularly indebted to the lawyers of MIND for their help in drafting the Bill. I am also indebted to my noble friend Lord Hayhoe for having stood in for me in moving the First Reading.
As many of your Lordships are aware, appeals under the Mental Health Act 1983 against compulsory detention in mental institutions are heard in the first instance by panels of Mental Health Act managers who have been appointed for that purpose by health

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authorities. The managers may or may not be members of the authorities but they have all had training. Many of them have had long experience in that crucial function.
Following the establishment of NHS trusts it had been assumed that trusts with Mental Health Act responsibilities would have had the same power as health authorities to appoint Mental Health Act managers. In most cases the same people would simply have been re-appointed by the new trusts.
However, owing to a mistake in the drafting of Schedule 9 to the National Health Service and Community Care Act 1990 which established the trusts, Section 145 of the 1983 Act was amended in such a way as to require those appeals to be heard by three independent directors of the relevant trust with no power to delegate the duty to Mental Health Act managers.
Most independent directors of trusts have had no training and have little or no experience in this role. Quite simply, they are not qualified to undertake that specialised function. Trusts up and down the country have resorted to a variety of devices, under guidance from my noble friend's department, in order to comply with the law, but it has been extraordinarily difficult. On departmental advice, trusts have had to make sure that the final decision on whether to detain or discharge a patient is taken and is seen to be taken by independent directors. That can be highly inconvenient and is proving very difficult in practice.
I have had a number of letters from trusts indicating their support not only for the passage of the Bill but for the urgent passage of the Bill. Perhaps I may quote from one or two. East Cheshire NHS Trust stated:
"Already we are finding that patients are facing delays in appearing because of the difficulty of arranging hearings. On at least two occasions in the past month Non-Executive Directors here in Macclesfield have had to leave their sickbeds to conduct appeals in the interests of patients".
One of my honourable friends in another place had a letter from the Wexham Park Hospital near Slough saying:
"You will appreciate that appeals are unpredictable and must be heard at short notice. With only six Non Executive Directors this is almost impossible".
I received a letter the other day from the Association of Mental Health Act Administrators. As they are the people who are primarily concerned and who are the professionals involved, the association's view is very important:
"The Association of Mental Health Act Administrators receives many queries from its members on this matter, especially from those hospitals where there is a large detained population and a consequent large number of appeals to the 'hospital managers'. As you will appreciate, it is very difficult to arrange appeal hearings on a regular basis with a limited number of 'managers'—there are hospitals where, for example, appeal hearings are held at least three times per week and NHS Trusts are very anxious not to act otherwise than in accordance with the law—notwithstanding that there has been an error in drafting this part of the legislation; there is no doubt that hospitals are experiencing much difficulty in this respect and we, as an Association, would support the proposed amendment and would ask that it be dealt with as a matter of urgency".
I should perhaps have declared an interest. I am chairman of an NHS trust and we are, of course, affected. We have had considerable difficulties, often having to arrange hearings on the telephone if
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independent directors cannot be in the hospital. Advisers will hear the case and conduct the proceedings but they cannot make the decision. Documents have to be distributed to the independent directors, who have to hold themselves available and then be given an account over the telephone of exactly what has happened, what has been said and what the arguments have been and be told the recommendation as to what the course of action should be. It is essential that each director in turn makes up his own mind and reaches the decision. Your Lordships will understand that that is a very unsatisfactory way of proceeding. We are complying with the law but it is not satisfactory.
Only a very simple amendment of the legislation is necessary to put the matter right. Paragraph 24(9) of Schedule 9 to the National Health Service and Community Care Act 1990 added to the definition of "the managers" in Section 145 of the 1983 Act:
"in relation to a hospital vested in a National Health Service trust, the directors of the trust".
My Bill seeks to delete the words "the directors of", leaving the trust itself as the manager. I am advised that if that change is made there is no bar to trusts delegating the function to Mental Health Act managers in the same way as health authorities have always done.
Trusts up and down the country and the professional people involved are looking to the swift passage through Parliament of this short amending Bill. Tonight, if the House so decides, we can take the crucial step of giving it a Second Reading.
Moved, That the Bill be now read a second time.—(Lord Jenkin of Roding.)
7.27 p.m.
Lord Mottistone: My Lords, I want briefly to supplement what my noble friend Lord Jenkin of Roding said. I was approached by my own Isle of Wight community care trust to ask whether I would move a similar Bill. I was delighted to find that my noble friend, with his much greater experience in this area, was moving this Bill. I hope very much that there will be no difficulty with it.
I have very little to add, except that my noble friend mentioned the fact that the directors do not necessarily have the required expertise. Our trust has discovered that the directors can pick up what is required, given time, but that the key issue, as my noble friend mentioned, is lack of numbers. I spoke to the chairman of our trust this morning. He said that the trust is dealing with a case at this moment. An appeal is waiting to be heard. In his opinion, it should have been heard at the beginning of this week, but it could not be heard because the five available non-executive directors could not be gathered together to do the job as it should be done and the appeal will have to be put off until next week. In his opinion that is sad for the person who made the appeal. He hopes very much that this Bill will rattle quickly through Parliament. I hope that your Lordships will support it in every way.
7.30 p.m.
Lord Simon of Glaisdale: My Lords, perhaps I may step into the gap in the list of speakers to say, as the surviving member of the Percy Royal Commission on Mental Health, which was the origin of the appeal procedure on mental health, that in my view what the Bill proposes is entirely consonant with the purposes of what was proposed by the Royal Commission.
Baroness Jay of Paddington: My Lords, I should like to support the Bill from these Benches. We welcome the fact that the noble Lord, Lord Jenkin of Roding, has introduced this and that, with Government support, it is probably assured of a swift and speedy passage through both Houses.
Like the noble Lords, Lord Jenkin of Roding and Lord Mottistone, I have had personal experience in London of the difficulties caused by this obvious anomaly in the 1990 Act. I have also seen the problems which arise when non-executive directors have to be summoned urgently to deal with cases and have, indeed, resorted to the rather strange arrangements of having conference telephone calls. I cannot forbear but to say that perhaps this might have been less burdensome to some of them, as was pointed out in the debate in your Lordships' House yesterday on quangos, had more than 12 per cent. of existing trust directors come from voluntary sector backgrounds, from organisations such as MIND, who have supported this Bill and who have more experience than the average lay person in dealing with this complicated area.
As your Lordships will know, there have been areas of concern about the National Health Service new legislation, and we on these Benches have been less than happy about the developing role and perhaps over-extensive role in some instances of managers within the health service trusts. But on this occasion it is obviously an entirely appropriate role for them to play. I should like to support the Bill.
7.32 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, I am very grateful to my noble friend Lord Jenkin of Roding for introducing the Bill. As a distinguished former Secretary of State for Social Services and a dynamic chairman of a trust, he has introduced it with predictable clarity and brevity. Although the measure that my noble friend proposes may seem beguiling straightforward, it is an important one because it concerns the way in which decisions are taken about the liberty of people who are detained in hospital because of their mental health. The present Bill seeks to correct an anomaly introduced into the Mental Health Act 1983 by the drafting of the NHS and Community Care Act 1990. We have been acutely aware of the administrative burden this has put on trusts which provide treatment to the severely ill people. If the legislation is allowed to remain uncorrected, there is also a real danger that detained patients may experience unacceptable delays in the hearing of their cases. Indeed, during this debate we
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have already heard that in some cases that is what is happening. So I am glad to record that the objectives of the Bill have the Government's full support.
The right to appeal to the so-called hospital managers is an important safeguard for patients detained under the Mental Health Act. The managers have the power to discharge the patient if the statutory grounds for detaining him or her are not satisfied. Those hospitals still managed by health authorities are able to delegate the hearing of these appeals to committees made up of experienced outside members. This has been their widespread practice.
The 1983 Act was amended by the NHS and Community Care Act 1990 to take account of the creation of trust hospitals. The intention of the legislation was that executive directors of NHS trusts should be precluded from exercising the powers of discharge under Section 23(2), and non-executive directors should be able to delegate those functions (in much the same way as health authority-run hospitals) to a committee or sub-committee composed of people who are not directors. Unfortunately, the effect of the legislation was that non-executive directors of trusts alone are required to hear appeals in person, as we have heard this evening.
As my noble friend Lord Jenkin of Roding has said, the problem lies with the definition of "the managers" in Section 145(1) (bb) of the 1983 Act. This was added by paragraph 24(9) of Schedule 9 to the NHS and Community Care Act 1990. This Bill seeks to amend the definition of the managers in order to reflect the original intention of the Act. I appreciate that not a lot needs to be said on this, but I hope that your Lordships will forgive me if, just for the record, I spend a little time explaining the nature of the legal problem in some detail. Under section 23(2) (a) of the 1983 Act an order for the discharge of a patient liable to be detained in a hospital may be made by, among others, the managers. Where the hospital in question is vested in an NHS trust, the managers are defined as the directors of the trust.
Section 23(4) enables the powers of discharge conferred on any "authority, trust or body of persons" to be exercised by "any three or more members of that authority, trust or body authorised by them in that behalf", or "by three or more members of a committee or sub-committee of that authority, trust or body which has been authorised by them in that behalf". Our advice is that because, by virtue of Section 145(1), the managers of a trust are the directors of the trust rather than the trust as a body, the Act does not confer any powers of discharge on the trust itself. Therefore, it is the phrase "body of persons" rather than the word "trust" in Section 23(4) which refers to the managers of the trust. The effect of this is that the directors of the trust cannot delegate the power of discharge to a committee of outside members of the kind I described earlier.
We are further circumscribed by the new subsection 23(5) of the 1983 Act, which was also added by Schedule 9 to the 1990 Act. This stipulates that the power to discharge patients conferred by Section 23 on an authority, trust or body, may only be, in the case of a trust, by the chairman and those directors who are not

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also employed by the trust. In fact it is not entirely certain that this restriction applies to the directors of the trust in this instance. But given the clear intention of Section 23(5), our advice is that we must assume that it does, and the effect is to leave the non-executive directors bearing the burden alone.
The amendment to the 1983 Act proposed by my noble friend, by defining the "managers" referred to in Section 23(2) as "the trust" rather than the "directors of the trust", appears to circumvent very neatly the difficulties I have been outlining. Each of the other references to "the managers" in the 1983 Act has been considered, and there is no instance in which we would wish the present definition of "the managers" as it relates to a hospital vested in an NHS trust to remain the directors of the trust personally, rather than the trust as a corporate body.
In conclusion, I am very glad to have the support of my noble friend Lord Mottistone as well as that of the noble and learned Lord, Lord Simon of Glaisdale, and the noble Baroness, Lady Jay, who speaks from firsthand experience.
The legislation as it stands is unsatisfactory both in terms of ensuring the civil liberties of patients and the efficient conduct of trust business. In spite of the burden this problem has caused, I must applaud the fact that many hospitals have managed to hear appeals without extra delay. Nevertheless, it is clearly undesirable for non-executive directors to continue in this role.
I have said that the Government fully support the objectives of the Bill. We shall need to give a little more thought to whether there are any amendments which we need to bring forward at Committee stage. We may well find that the Bill already does the trick and does not need to be amended at all. I should like to congratulate my noble friend, and I have pleasure in commending this Bill to your Lordships' House.
Lord Jenkin of Boding: My Lords, I am immensely grateful for my noble friend's support. I think the whole House will be grateful, and indeed those outside, that she has placed on record in some detail the legal arguments that drove her department to the view that this had to be done by the independent directors themselves. It is a complicated question. I was tempted to go down the same road myself, but thought it was easier to deal with it rather more briefly because I was able in moving the Second reading to describe the nub of the problem.
It is very reassuring to have had such universal support from all parts of the House, and it is particularly gratifying that my noble and learned friend Lord Simon of Glaisdale was able to reassure us that this was fully in accordance with the spirit of the Percy Commission's report.
In relation to Forest Healthcare Trust perhaps I could reassure the noble Baroness, Lady Jay, that we were very fortunate and wise in having as one of our independent directors the chairman of the Mental Health Act managers who had acted for the trust previously. That redoubtable lady has borne the heat and burden of what we have had to do over the past few months. I am anxious to relieve her of some of the problems as
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quickly as possible. I should add that that is why we put twenty-one days and not the customary two months after the Royal Assent for the Bill to come into force.
I am very grateful indeed for all the support which has been given to the Bill and I commend it to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.1
[The Sitting was suspended from 7.40 to 8.5 p.m.]

Local Government (Wales) Bill [H.L.]
House again in Committee.
[Amendment No. 90A not moved.]
Clause 44 agreed to.
Lord Hooson Lord Hooson moved Amendment No. 91:
After Clause 44, insert the following news, clause:
("Children and Young Persons Commissioner
The Secretary of State shall establish the office of a Children and Young Persons Commissioner to monitor the effectiveness of all services provided by principal councils and public bodies for children and young persons, to investigate specific complaints about these services and to report annually to Parliament.").
The noble Lord said: In the absence of the noble Lord, Lord Elis-Thomas, I beg leave to move the amendment standing in his name. I believe that at this very moment he is in the process of delivering the annual BBC lecture in Cardiff and I am bound to say that I would have very much enjoyed being there to listen to him.
I feel that although the noble Lord is not here the amendment should be moved because it is an interesting one. Many noble Lords are aware that the NSPCC in Wales circulated a letter to them which included a reference to the amendment. It involves the setting up of a children and young persons commissioner to monitor the effectiveness of all services provided by the councils and public bodies for children and young persons, to investigate specific complaints about those services and to report annually to Parliament. In effect, the amendment would lead to the creation of a children's ombudsman.
The annual report to Parliament is an interesting idea. It would presumably involve a debate on the report every year by the Welsh Grand Committee in another place. The letter, which canvassed support for the amendment, set out the grounds on which it was based. It has the total support of the NSPCC Wales National Council. Obviously, this is a fresh, innovative suggestion, and I move the amendment simply to ascertain the Government's reaction to it. I would not think of pressing the amendment to a Division, but I am very interested to have the Government's reaction.
Lord Prys-Davies: Like two clauses which were briefly discussed on Monday night, this amendment draws attention once again to an area of considerable

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concern in Wales and England, and also presumably in Scotland. I believe that this particular amendment is based on New Zealand legislation.
I understand that Amendment No. 91, together with the two amendments which address the matter of child care upon which we touched on Monday, is the subject of intensive consultation in Wales. I am hopeful that the statutory authorities and the voluntary bodies which have a special interest in children can agree an amendment which we can bring forward for discussion at Report stage. Like the noble Lord, Lord Hooson, I am interested in the Government's response to the amendment.
Lord Rodger of Earlsferry: We are grateful to the noble Lord, Lord Hooson, for moving the amendment in the absence of the noble Lord, Lord Elis-Thomas. It raises the question raised in Committee on Monday of children and young people.
It is true to say that the whole Chamber shares the noble Lord's concern for children and young people. But the Bill which the Committee is now considering has been carefully drafted to provide for the reorganisation of local government in Wales and to secure the conditions necessary to allow the structure to operate effectively. That is what it is designed to do. In presenting the Bill to Parliament, the Government have resisted the temptation (which is not always easy for the Government) to introduce innovations or in some way to "tidy up" the statute book in respect of particular functions. For that reason alone the Government would resist including in the Bill this provision which relates to a particular matter.
We do not resist the Bill merely on such technical grounds. In fact we do not believe that this is the right way to safeguard children's services or their rights. It seems to us that children's services are best provided by strong and accountable local authorities which act in the interests of the people in the area. It is important that their responsibility—because it is their responsibility—should not in any sense be diluted.
We believe that the kinds of authority which will be set up in effect will be strong and accountable and therefore that they will be the best kind of people to look after children's rights. However, I make an additional point. The Committee will consider that the rights of children are safeguarded and protected by the law and in particular by the Children Act 1989. Therefore it follows that in so far as those rights are the responsibility of local authorities, they fall within the remit of the Commissioner for Local Administration (to put it shortly, the local government ombudsman) and beyond that they may fall within the remit of the Parliamentary Commissioner for Administration, who is more popularly known as the general ombudsman. They have a role to investigate matters in relation to children.
Therefore we feel that the rights of children, in so far as they are protected by law and so on, in these areas are in fact protected already by the existing system of
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ombudsmen. For that reason we do not believe that the amendment is necessary. We believe that the protections that already exist are adequate.
Lord Hooson: I am most obliged to the noble and learned Lord for his reply, which no doubt will be very carefully considered by my noble friend Lord Elis-Thomas and the National Committee of the NSPCC in Wales. I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Committees of existing councils for consideration of certain matters]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 92:
Page 34, line 10, at end insert ("provided that as a result of his determination, the number of representatives of the old District authorities shall equal the number of representatives of old County authorities on each Transitional Committee.").
The noble Lord said: Under Clause 45 it is for the old authorities to agree on the composition of the transitional committees. But if they are immovably deadlocked, the Secretary of State will have to determine the numbers from each authority. As the clause is drawn he is given complete discretion as to the composition of the committee.
The amendment seeks to preserve the status quo between two tiers of local government. This is in order to ensure that equal weight is given to the views of each. I mention the status quo because I understand that that is the precedent that is followed when there is that kind of deadlock. I hope that the Government will find merit in the amendment. I beg to move.
Viscount St. Davids: It is intended, and highly desirable, that membership of the transition committee to be set up under this clause should be a matter for the constituent authorities to decide among themselves. Under the clause as drafted the Secretary of State would not have the power to appoint the committee or to decide upon its individual membership. In the absence of agreement, however, he would be able to determine how many members the committee should have and from where they should be drawn.
The Government understand the concerns of the noble Lord that both tiers of the existing structure should be equally represented. The Secretary of State accepts the principle and, if your Lordships will permit me, I will consider the matter further and return with our own proposal at Report.
Lord Prys-Davies: That is satisfactory and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Clauses 46 to 48 agreed to.
Clause 49 [Welsh Church funds]:
8.15 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 93:
Page 36, line 4, leave out from ("to") to end of line 5 and insert ("each of the other new principal councils whose area includes part of the area of the old authority and which becomes entitled to an apportioned part of the property by virtue of subsection (5).").
The noble Lord said: Anyone who is familiar with the Welsh Church funds will know that they were set up

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by the Welsh Church Act 1914, when the Church was disestablished in Wales. The history of rural Wales over the past century has been bound up in part with the struggle for the disestablishment of the Church and the disendowment of its funds.
I took the precaution of reading the Second Reading debate of 1914 and I found that the Attorney-General of the day, Sir John Simon, supported by Lloyd George and Keir Hardie, to name but two of the leading politicians of the day and its leading lawyer, were satisfied that the ancient funds of the Church had been given to the Church upon trust, in the main for parochial purposes. Indeed, in many parts of Welsh speaking Wales they are known to this day as arian y degwn —the tithe money. The funds were originally apportioned to the county councils and subsequently, on the reform of local government in 1972, they were transferred under Clause 211 to the eight county councils as trustees for the beneficiaries living in their counties.
Clause 49 as it stands would make it possible for the Secretary of State to vest the funds in a lead authority. We believe that it would be unwise for him to do so. We feel that it would be consistent with the 1914 Act for the funds or the apportioned part to flow to the new principal counties, where they are badly needed in their communities.
If the funds were administered by a lead authority, we feel that people might well have ground for grave complaint. It might not be obvious that they were fairly applied in the interests of the area of benefit. That would lead to the communities which felt that they were being discriminated against taking up Lloyd George's famous battle-cry against the Church (it is to be found in Hansard):
"We claim back our own property".
These are charitable funds and therefore Parliament should be seen to be fair to the utmost degree. I trust that Amendment No. 93 will be acceptable to the Government. A fuller version is to be found in Clause 211 of the 1972 Act. I beg to move.
Lord Rodger of Earlsferry: In effect, Amendment No. 96 would split the eight Welsh Church Act funds into 21. At present, the first charge on the funds is the cost of their administration. The amendment would thus remove the economies of scale currently enjoyed. It would be likely to increase administrative costs, thereby reducing the amount of money available for grants for the charitable and other purposes which have been supported by the Welsh Church Act funds over the past 75 years. That is an outcome which the Government find difficult to support or to envisage as desirable.
The intention of the amendment is to provide for each of the 21 authorities to have a role in deciding on the allocation of grants. However, the clause already allows that to happen. The Secretary of State intends to designate eight unitary authorities under Clause 49(1), to ensure that economies of scale in administering the property are maintained. The property vested in each of the present eight counties would be vested in an appropriate designated authority. Subsection (3) of the clause provides for appropriate apportionments to be made. What follows next would be for local decision.
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New authorities in the area covered by the Welsh Church Act fund may decide to set up a joint committee under Section 102 of the Local Government Act 1972. The scheme under Section 19 of the Welsh Church Act 1914 would apply throughout the fund's area and the joint committee would take all decisions about allocation of grants. That would be one route. Alternatively, each new authority may wish to take its own decisions about the allocation of grants in its area. To enable that to happen, the designated authority would have to indicate each year how much income the fund was expected to generate. The income would then be notionally split on a basis to be agreed by all the authorities in the fund's area. That would give a "budget" within which each authority could take its decisions. A third possibility would be a mixture of the two options I have outlined. For example, Pembrokeshire might want to make its own decisions while Carmarthenshire and Cardiganshire might be happy to take decisions for their areas through a joint committee.
The Government will not be expressing any preference about the arrangements which the new authorities should make. The Secretary of State's role would be limited to designating eight lead authorities to administer the property—he will be consulting the local authority associations about that in due course—and, as now, to approving schemes submitted to him under the Welsh Church Act 1914.
The clause would enable each of the new authorities, if it wished, to take decisions on grants from the Welsh Church Act funds. I hope that that explanation will persuade the noble Lord not to press his amendment.
Lord Prys-Davies: I am grateful to the noble and learned Lord for that full explanation of how the Welsh Office anticipates Clause 49 might apply. For my part, I am not convinced by the argument of costs. If we were to pursue the matter, I would wish to develop the argument further. One must set against the argument for costs the sense of grievance in a community if the people felt that the funds, which in ancient times originally emanated from their parishes, were being administered by a body one removed from the parish. A balance must be struck.
I am grateful for the explanation. Those with whom I consult must consider the clause carefully to see whether we need an amendment. I conclude by saying that they are charitable funds and, consistent with the Court of Chancery, we must deal with them as a man of conscience would deal with them. Parliament must be seen to be fair to the utmost degree. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
Clauses 50 and 51 agreed to.
Clause 52 [Consequential and supplementary provision]:
Lord Hooson Lord Hooson moved Amendment No. 94:
Page 39, line 2, leave out ("or supplemental").
The noble Lord said: Originally, I tabled three amendments arising out of the second report of the Select Committee on the Scrutiny of Delegated Powers,

787
Session 1993–94. We have not yet reached my third amendment but I mention it now because it was adopted by the Government. It is the first amendment I tabled and I find that there are now five names to it. I have therefore been superseded.
Lord Williams of Elvel: Is the noble Lord speaking to Amendments Nos. 94 and 96?
Lord Hooson: That is correct. This is the preamble, if the noble Lord will not be too impatient. What I shall say in a moment is reinforced by the presence here this evening of that noble champion the noble and learned Lord, Lord Simon of Glaisdale, who, in formidable alliance with the noble Lord, Lord Henderson of Brompton, spearheaded the role of this House as the protectors of the constitutional rights of the citizens of this country.
I now turn to Amendments Nos. 94 and 96. At page 4 of the report the committee said:
"The Committee was concerned that, under subsection (1) of the Clause, the order-making power extended not only to `incidental, consequential, [and] transitional provision' as the Secretary of State thinks necessary or expedient for the purposes of the Bill, or in consequence of any other Bill passed this Session which applies to areas or authorities affected by the Bill, but also to 'supplemental provision' he thinks necessary or expedient for those purposes. In view of this extension of the delegated power to supplemental provision, and of the Welsh Office's admission [to which he referred later] 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".
I propose that we leave out the words "or supplemental". I can understand the Government needing the power to deal with incidental, consequential or transitional provisions, but why supplemental provisions? Why should the Government, by order, have the power to extend and add to the law?
The word "supplemental" is not necessary. Amendment No. 96 makes necessary scrutiny by affirmative resolution as recommended in the report of that important committee of your Lordships' House. The noble and learned Lord has met the concerns of the committee, to which I need not refer hereafter, on the third amendment. Why has he not met our anxieties on these two amendments?
8.30 p.m.
Lord Williams of Elvel: We support the noble Lord, Lord Hooson, in his Amendments Nos. 94 and 96. Generally, we object to Clause 52 and particularly to Clause 52(1), which allows the Secretary of State wide powers to make orders which may, so far as I interpret Clause 52(1), change primary legislation that has been passed by Parliament if the Secretary of State feels that that is desirable for general purposes or for any particular purpose of the Bill. That is objectionable in itself.
Furthermore, we support the noble Lord in Amendment No. 96 not least because we wish to give support to the Delegated Powers Scrutiny Committee, from the report of which the noble Lord has quoted. It would be absurd if on probably the first test of one of your Lordships' major innovations and on a report of
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this gravity the Government and your Lordships should decide not to pay attention to its recommendations. For all those reasons, we support the noble Lord, Lord Hooson.
Lord Simon of Glaisdale: I desire to say nothing further about Amendment No. 94. That has been cogently argued. I should like to add a word on Amendment No. 96.
Both noble Lords have mentioned the scrutiny committee. Of all the recommendations of the Jellicoe Committee, that was the only one on which the Government expressed reservations—and the Government in that respect means Whitehall. They expressed reservations. There is nothing to be indignant about but it is a matter for vigilance. There has been an age-long and widely extended tension between executive and legislature. The executive, particularly the official executive in these modern times, finds it very much easier to legislate by statutory instrument. If it is wrong it can be withdrawn; and if people have suffered some mishap in the meantime, why that is just too bad. On the other hand, the parliamentary process is undoubtedly a great bore to administrators. Anyone who has been on both sides of the official baize door will know that in a moment.
Although the Government expressed reservations about the scrutiny committee, happily the Procedure Committee brushed those reservations aside and the scrutiny committee was established last Session and operated to widespread and loud acclaim. It has proved itself a very great success. I shall come in a moment, on the later amendment, to the one respect in the last Session in which the committee was challenged. That was in relation to hybridity. But here it is a question of the supplemental powers that are sought, and particularly the degree of parliamentary control. Should it be by affirmative or by negative resolution?
The scrutiny committee has signalled very clearly that it thinks that it should be the affirmative resolution in view of the importance of the matter. One asks: why then are the Government so insistent on the negative resolution procedure? In fact, that is not very difficult to answer. The affirmative resolution procedure is far more effective as a measure of parliamentary control than the negative resolution procedure. In the first place, with the negative resolution procedure it very often happens—it happens more often than not—that the other place does not get round to the order before the time has flowed out in which it can be allowed. The other point is that the affirmative resolution procedure is far more convenient because the Minister explains at the beginning what the purpose of the regulation is and then an orderly debate ensues. On the other hand, on the negative procedure, there is a scrappy debate to which the Minister replies at the end. Those reasons—both relating to the degree of parliamentary control—are potent reasons why the executive much prefers the negative resolution procedure and why the noble and learned Lord has not added his name to the earlier amendment although he has to the last of the three.
The noble Lord, Lord Williams, asked what the use was of setting up the scrutiny committee if the executive

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is allowed on the very first Bill of the second Session in which it is giving its views to thumb its nose at that committee and therefore at your Lordships' House. I strongly support what has been said by the noble Lords.
Lord Rodger of Earlsferry: Clause 52 is the general order-making power for the Bill and it enables the Secretary of State, among other things, to make transfer orders in respect of property—that is found in Clause 52(2) (c). It is a standard clause which is included in many Bills and certainly in all reorganisation Bills. It is subject to the negative resolution procedure.
The first of the amendments would remove the Secretary of State's flexibility to make orders covering supplemental matters not directly covered by the Bill itself in order either to carry out the purposes of the Bill or to follow up the consequences of other Acts passed in this Session. The second amendment would subject any order under the clause to the affirmative resolution procedure.
As the noble and learned Lord, Lord Simon, has emphasised, and other noble Lords have mentioned, the order-making power in this clause was considered by the Select Committee on the Scrutiny of Delegated Powers. I would pause to observe that one thing which cannot be said is that the Government have not taken careful note of what was said by the Select Committee. In its report, the Select Committee questioned whether the House should consider whether—I stress that —the affirmative procedure would be more appropriate in this case.
Lord Simon of Glaisdale: Does the noble and learned Lord really believe that it could be put in any other terms?
Lord Rodger of Earlsferry: I merely quote what it says. I was about to add "whether or not it should be in that form". It was because of the existence of the adjective "supplemental" as well as the others. It would extend to supplemental provision as well as the consequential provision, and so forth.
Lord Williams of Elvel: Will the noble and learned Lord accept that the terms of reference of the Delegated Powers Scrutiny Committee do not allow it to make recommendations to this House other than that this House "should consider"? It does not say that this House should refuse or should set aside. We can only consider and those are the terms of reference. Having said that, I cannot think of anything in black type which is stronger and which the committee could have said. I cannot think of anything stronger than what is said at the bottom of page 4 and at the top of page 5 in the report which is being quoted.
Lord Rodger of Earlsferry: I do not wish to make a great fuss about this. The Committee will have noticed that in paragraph 7 the committee's recommendation was to consider whether orders under Clause 1(1) should be subject to parliamentary control and not "whether or not". I make no great play on that. I merely observe that there is a difference in the formulation of
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the two. I respect the scrutiny committee enough to believe that there must be a reason for the given formulation. However, I do not put stress on it.
The reason why it was considered that there might be the provision of the affirmative resolution procedure here was because of the existence of the supplemental provision in Clause 52(1) whereas if both the amendments of the noble Lord, Lord Hooson, were accepted, in effect one would remove the supplemental provision but nonetheless would retain the idea of an affirmative resolution procedure which, as I read the committee's report, was designed simply to deal with the question of supplemental provision.
Lord Hooson: Supposing Amendment No. 94 was not pressed and therefore "supplemental" was left in. Does not that strengthen the case enormously for the other amendment—that is to say, there should be an affirmative order if that is to include "supplemental"?
Lord Rodger of Earlsferry: All I was observing was that what is proposed here in these amendments, taken together, is not actually what is recommended by the scrutiny committee. It chose to make its recommendations in respect of the supplemental provision and not in respect of the other matters.
Lord Williams of Elvel: I point out to the noble and learned Lord there are two grounds on which the committee urges the House to consider whether or not the affirmative procedure is more appropriate. As the noble and learned Lord quite rightly said, ground one is
"extension of the delegated power to supplemental provision".
There then follows a comma and the words,
"and of the Welsh Office's admission (page 15) that the power could be used in 'potentially far reaching ways'".
The second seems to be much stronger than the first.
Lord Rodger of Earlsferry: I do not wish to go into detail. It seems to me that the second part comes from the fact that it is the supplemental provision which could be used in that way. Be that as it may, I now turn to the substance of the matter.
The provision does indeed cover supplemental matters. The phraseology used here is based on precedent. For example, it appears in Section 254 of the Local Government Act 1972; it appears in Section 101 of the Local Government Act 1985 and in Section 26 of the Local Government Act 1992. So the phraseology chosen is by no means unusual or exceptional.
If one were to delete the reference to supplemental matters, it might infer that the scope of the orders proposed here was somehow different from that proposed in other measures. Certainly, as far as the Government are concerned, there is no intention to do anything not envisaged as being done under this earlier legislation.
The term "supplemental" is certainly not able to be construed as allowing the Government to introduce new legislative provisions unconnected with reorganisation. It is merely intended to allow the Secretary of State to be sure that where legislative or administrative procedures require adaptation to fit in with the new Government structure, extended or more detailed

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provision can be provided by statutory instrument. However, it would require to be necessary in consequence of the reorganisation.
To subject every order under this clause to affirmative resolution is contrary to precedent and would, if accepted, result in Parliament having to devote what would be a disproportionate amount of time to the scrutiny of what would be in many cases very detailed and minor secondary legislation. For example, it would mean that your Lordships would have to consider, under the affirmative resolution procedure, orders providing for the transfer of property to individual authorities. Such orders could be dealing with small numbers of properties or even one individual property, especially, for example, if something had been overlooked.
It is difficult to believe that adopting the affirmative resolution procedure in such cases could do anything other than put an unnecessary amount of delay in the implementation of such orders. In the end I believe that it would have the effect of somewhat blocking your Lordships' procedures.
It is for that reason that we do not believe that the affirmative resolution procedure would be appropriate for the kinds of orders which are envisaged under this clause.
Lord Williams of Elvel: Perhaps I may suggest a compromise. If the Government take this amendment away and, on Report, come back with a new provision which would define the type of orders which may be suitable for the negative procedure, but which equally satisfies the Delegated Powers Scrutiny Committee that the power could be used,
"in potentially far-reaching ways"
and be subject to the affirmative procedure, that is something which the noble and learned Lord may be able to live with. We on these Benches would be able to live with it.
Lord Hooson: The reply of the noble and learned Lord is very disappointing. The noble and learned Lord, Lord Simon of Glaisdale, has made an important point. This is the first time that a Bill has been considered in this way by the scrutiny committee and yet here the Government are cocking a snook at its recommendations. It appears to me that the Welsh Office, in its reaction to the next amendment which the noble and learned Lord has adopted, initially adopted a negative attitude. It changed that, no doubt under the influence perhaps or the advice of the noble and learned Lord; or at least, it has considered the position more maturely.
It seems to me that if the Government want to include the word "supplemental" in these two amendments, they should be prepared to accept the affirmative resolution procedure. If they are prepared to remove the word "supplemental", then for my own part, I would not insist on an affirmative resolution.
When the noble and learned Lord referred to various precedents, does he not appreciate that it was because of those precedents that this House realised as, I think the other place has realised, that we have become far too slack in our scrutiny of delegated legislation? That is what led to the setting up of the Scrutiny Committee;
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but here we are, with the committee's report before us, but the Government are not giving due weight to its recommendations. I think that there is a firm choice here between dropping the word "supplemental" and not having an affirmative order or the other way round. Therefore, I would adopt the suggestion that was made by the noble Lord, Lord Williams of Elvel. We must return to this on Report.
Lord Rodger of Earlsferry: The only thing to which I would take exception in what the noble Lord has said is the suggestion that in any way the Government intended to cock a snook at the committee's report. On the contrary, the Government have given that report careful consideration and, as a result, have adopted the noble Lord's amendment.
I am happy to give the Committee an undertaking to consider the word "supplemental". I should like to take a look at exactly what that word would cover which would not be covered adequately by other words already in the Bill. Therefore, I am happy to undertake to look again at this matter and to return to it on Report.
Lord Hooson: On the basis of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 95:
Page 39, line 22, leave out ("or such other person as may be prescribed").
The noble Lord said: By contrast, Amendment No. 95 is no more than a gentle probing amendment, instigated by my curious and sceptical nature and nothing else. The Committee will remember that I have been interested all along in what the residuary body does and what it can do. I notice that although Clause 52(2) (c) looks innocuous and harmless and the clause deals only with
"such incidental, consequential, transitional or supplemental provision"
as is "necessary or expedient", in fact it covers a wide spectrum of activities and represents a great deal of money. What I should like to know is why the words,
"or such other person as may he prescribed"
are necessary. Do not the named bodies suffice for the purpose? Who would the "other person" be? As the Bill stands, could it really permit the transfer of a highly desirable property—to wit, a large country house, in splendid condition and in salubrious surroundings—to me and to my heirs as assigned? I cannot believe that that is any part of the intention, but the wording does not seem to deny it. Where is the line to be drawn? I beg to move.
Lord Rodger of Earlsferry: The particular provision to which the amendment relates is part of Clause 52, in which subsection (1) gives general guidance as to the use which the Secretary of State may make of his powers. They are
"for general purposes, or any particular purpose, of the Act or … in consequence of such of the provisions of any other Act passed in the same Session … as apply to any area or authority".
Overall, there is a controlling power which prescribes that the powers are to be used in relation to those purposes.

793
Your Lordships will see that an order under subsection (2)(c) may, in particular, make provision for the transfer of property. I must advise the noble Lord, Lord Morris, however, that it is unlikely that the Secretary of State would be able to use his powers to transfer that desirable country house to the noble Lord because that would not have anything to do with advancing the purposes of the Act. In other words, the Secretary of State can use the powers that he is given, particularly the powers to transfer property, only for the purposes of the legislation; namely, the purposes of the reorganisation of local government.
The noble Lord asked a legitimate question: why does the paragraph end with the words,
"or such other person as may be prescribed"?
The noble Lord will see that if those words were lacking, the only bodies to which property could be transferred would be a new principal council or the residuary body. It is envisaged that there could be circumstances in which it would be necessary for property to be transferred to other bodies. I am thinking, for example, of the new combined fire authorities which would not fall within the definition of a "principal council". I am thinking also—this may be closer to the noble Lord's sphere of interest—of the national park boards. It is to allow transfers to be made in appropriate cases to bodies such as those that those words are included in the clause. There may be other examples, but those are the reasons for that wording.
Lord Morris of Castle Morris: I am grateful to the noble and learned Lord for that explanation. I still think that it might have been possible to draw the provisions a little more closely than is the case in the huge remit of,
"or such other person as may be prescribed".
Personally, I am disappointed but, legislatively, I am relieved. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Clause 52 agreed to.
Clauses 53 to 58 agreed to.
Clause 59 [Regulations, orders and directions]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 97:
Page 46, line 16, leave out subsection (4).
The noble and learned Lord said: Amendment No. 97 would leave out Clause 59(4) of the Bill which excludes orders made under Clauses 30, 31(1) and 32(1) from the jurisdiction of the Hybrid Instruments Committee of your Lordships' House. Your Lordships will note the Government support this amendment. That is because we have taken careful note of the report of the Delegated Powers Scrutiny Committee.
But having set out the reasons for the Government's support for this amendment, I think that I owe the committee an explanation as to why the Government originally thought it appropriate to include this provision in the Bill.
There are a number of recent precedents for disapplying the Standing Orders, including the Local Government Finance Act 1988 Section 143(11) and the Local Government Act 1992 Section 26(2). The latter provides among other things for the Standing Orders in
794
relation to hybrid instruments to be disapplied if the Secretary of State established a joint authority for two or more local government areas under Section 21(2) of the 1992 Act. That was thought to be a precedent somewhat similar to what is proposed in connection with Clause 30.
It is unlikely that the exercise of these powers would affect the private interests of individuals within an area that is subject to any order. The provision for affirmative resolution would have provided a safeguard for all the inhabitants of an area who may be subject to an order. We were mindful, too, that in the case of an order under Clause 30, it could be that speedy action will be required to establish a joint authority before an irretrievable breakdown of services occurs. Some noble Lords have expressed concerns about the ability of some authorities to deliver particular services—archives, for example. As I have indicated, a situation where that service was at risk of breakdown may need to be addressed with some urgency. It was thought that subjecting such an order to the hybrid instruments procedure, with its possibilities at least for delay, could jeopardise services in one or more authorities. While I cannot say those considerations have disappeared entirely, as I have indicated, having regard to the recommendation of the Scrutiny Committee we are satisfied that in view of the concerns expressed, those countervailing matters are not sufficient to justify the retention of the power within the Bill. It is for that reason that we have decided to support the amendment tabled by the noble Lord, Lord Hooson.
In connection with the orders under Clauses 31 and 32, they would merely give effect to proposals submitted to the Secretary of State by the local authorities which would be affected by them. Again, In those circumstances it was considered that the proposals would, in effect, already reflect the support of local inhabitants and that the need to follow the more complex hybrid instruments procedure was less compelling. But again the Government have had regard to what the committee said and in those circumstances the Government are happy that the Bill should be amended in the way proposed. I beg to move.
9 p.m.
Lord Richard: Perhaps I may intervene for the first time on the Bill although I have been sitting here listening with interest to some parts of it. I regard this issue as one of the most important raised by the Bill's passage through Parliament. I am grateful to the noble and learned Lord and the Government for accepting the amendment and agreeing that the provision should be withdrawn. It was a pernicious clause and it embodied, in my view, a pernicious doctrine. It is wrong to remove the rights of those affected by a hybrid Bill in the way proposed in Clause 59(4).
We are concerned about this issue, too, because this type of subsection has been used not just in relation to this Bill but also in the Railways Bill, as the Scrutiny Committee pointed out. The House took a great interest in the similar provisions contained in the Railways Bill. The provision is also in the Police and Magistrates' Courts Bill, which the House is now considering. I have

795
not looked at the Bill, but I am told that it is firmly entrenched in the deregulation Bill which is about to start its passage in another place.
While it is not for me to look a gift horse in the mouth at any time, given that the givers of the horse are the Government, it is only right that one should ask whether this is a change of policy by the Government and a recognition by them that the rights of this House in relation to the hybrid Bill procedures should be maintained, or is it, as I detected from what the noble and learned Lord said, merely a tactical withdrawal by the Government on this Bill in the face of what I believe they know would be the intense opposition to that clause if it were to continue in its passage, or perhaps also because in relation to this Bill they do not believe that they will need it?
I hope that the noble and learned Lord will tell me that I have been over-suspicious; that I should accept at face value what the Government are doing; that there has been a change of heart and the principle is now re-established on the Government Benches and in the heart of the Government, as one hoped that it had been—namely, that if the House has a hybrid Bill procedure that procedure should, save in the most exceptional circumstances, be observed. If it is a change of policy, I am grateful. If it is only a tactical withdrawal, I am disappointed, but I am still grateful that, at least in relation to this Bill, the Government have taken out what I said at the outset I regarded as a pernicious part of it.
Lord Hooson: I am grateful to the noble Lord the Leader of the Opposition for intervening to make an important announcement with regard to matters in the pipeline as well as the present Bill. As I listened to the noble and learned Lord, I remembered that in my boyhood I thought that it was very impressive to read of the conversion of St. Paul in his own words. In the same way, I was glad that I did not have to move the amendment today. It was moved for me by the noble and learned Lord. All I hope is that now he has set a precedent he will head my name on the amendments on Report.
Lord Rodger of Earlsferry: I hope that the noble Lord the Leader of the Opposition will be happy with what has occurred. I believe that he expressed moderate happiness. What we have done is to have regard to the terms of the report and the recommendations made in it, and we have considered whether in this case it was justified to remove the hybrid procedure. We concluded that having regard to what is recommended that would not be appropriate. In doing so we have of course given appropriate weight to what was said by the committee. I cannot make the noble Lord the Leader of the Opposition as happy as he would like to be, but there may be other occasions when we would wish to maintain the removal of those procedures. There may be situations in which the committee itself could see no objection in particular circumstances. I am happy to say that the Government will always consider carefully what is said by the committee and give due weight to it.
Lord Richard: I am grateful to the noble and learned Lord for making it clear that the recommendations of the Scrutiny Committee, as set out in its report, are something that the Government will, in future legislation, take extremely seriously.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 98:
Page 46, line 21, at end insert:
("( ) paragraph 28 of Schedule 5;").
On Question, amendment agreed to.
Clause 59, as amended, agreed to.
Clauses 60 to 62 agreed to.
Schedule 13 [Minor and Consequential Amendments of the 1972 Act]:
Viscount St. Davids Viscount St. Davids moved Amendment No. 99:
Page 108, line 30, at end insert:
("(6) In subsection (6), for "(5)" substitute "(5A)".").
The noble Viscount said: Amendments Nos. 99 to 102 inclusive and Amendment No. 104 are technical amendments to Schedule 13. Unless the Committee requires further explanation from me, I beg to move.
On Question, amendment agreed to.
Viscount St. Davids Viscount St. Davids moved Amendments Nos. 100 to 102:
Page 108, line 36, leave out ("(3) and (6)") and insert ("and (3)").
Page 108, line 40, at end insert ("for "new district" substitute "Welsh principal area" and for "the district" substitute "that area"").
Page 109, line 6, at end insert:
(". At the end of section 73 (alteration of local boundaries consequent on alteration of water-course) add—
"(4) For the purposes of this section a preserved county is an area of local government."").
On Question, amendments agreed to.
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 103:
Page 109, leave out lines 19 to 21.
The noble Lord said: The amendment refers to Section 74 of the Local Government Act 1972. That allows a council to change its name given a two-thirds majority in favour. In several parts of Wales, and for obvious reasons, the proposal in the Bill as regards the boundaries of the authority is a matter of debate. Consideration of the name of the authority has not been a matter of major concern and will not become so until the end of the legislative process. I submit, therefore, that it would be sensible to allow the shadow authorities the opportunity to give serious thought to the name of the authority and to change that name if it so wishes.
Perhaps as an example of the generosity for which he is renowned, the noble and learned Lord will be prepared at this late hour to look favourably upon this small amendment. I beg to move.
Viscount St. Davids: The names which appear in the Bill were chosen by the Secretary of State following a consultation exercise in the summer of last year. It invited comments from the local authorities, members of the public, the Welsh Place Names Advisory Committee and the Welsh Language Board. The names

797
in the Bill reflect the responses received to that consultation. For example, the Secretary of State decided that Rhondda, Cynon, Taff was a more appropriate name than Glamorgan Valleys, which was the "working title" given to the authority in the White Paper.
The provisions of the new Section 74(6) to be inserted in the 1972 Act by means of subparagraph 5 of paragraph 19 of Schedule 13 to the Bill do no more than replicate a similar provision which was in the 1972 Act—Section 74(5). The Government recognise, however, the concerns expressed by the Committee and we are prepared to consider the matter again. I shall return with our conclusions at Report.
Lord Morris of Castle Morris: The generosity for which the noble and learned Lord is renowned is exceeded only by that for which the noble Viscount will now be renowned. I am grateful for his comments and look forward to hearing his proposals on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 104:
Page 111, line 46, leave out ("(a) and (b)") and insert ("(b) and (c)").
On Question, amendment agreed to.
Schedule 13, as amended, agreed to.
Schedule 14 [Other Consequential Amendments]:
Viscount St. Davids Viscount St. Davids moved Amendments Nos. 105 to 108:
Page 117, line 13, leave out ("3") and insert ("4").
Page 117, line 17, leave out ("3") and insert ("4").
Page 118, line 10, at end insert:
("The Local Government Finance Act 1988 (c. 41)
In section 55 of the Local Government Finance Act 1988 (alteration of lists), in subsection (7A) (a) after "41(6B)" insert "or 41A(10)".
In Schedule 9 to that Act (non-domestic rating: administration), in paragraph 8(2) (a) after "41(68)" insert "or 41A(10)".").
Page 118, line 33, leave out ("54 of the Local Government Finance Act 1992") and insert ("24 of the Local Government Finance Act 1992 (alteration of lists), in subsection (9)(b) after "22(8)" insert "or 22A(10)".
In section 28 of that Act (information about lists), in subsection (2)(a) after "22(8)" insert "or 22A(10)".
In section 54 of that Act").
The noble Viscount said: Amendments Nos. 105 to 108 are technical amendments. I beg to move.
On Question, amendments agreed to.
Schedule 14, as amended, agreed to.
Schedule 15 [Savings and Transitional Provisions]:
Viscount St. Davids Viscount St. Davids moved Amendments Nos. 109 to 111:
Page 121, line 11, leave out ("section") and insert ("paragraph").
Page 121, line 32, leave out from ("(1)") to ("the") in line 33 and insert ("If section 19 is brought into force before 1st April 1996, it shall have effect before that date only so far as is necessary to enable").
Page 123, line 14, leave out ("(1)") and insert ("(2)").
The noble Viscount said: Amendments Nos. 109 to 111 are technical amendments to the schedule. I beg to move.
On Question, amendments agreed to.
Schedule 15, as amended, agreed to.
Schedule 16 [Repeals]:
Viscount St. Davids Viscount St. Davids moved Amendments Nos. 112 to 115:
Page 124, line 21, at end insert:
("1949 c. 74. Coast Protection Act 1949. In section 20, in subsections (1) and (4), the words "or Wales".").
Page 125, line 26, column 3, leave out ("second") and insert ("third").
Page 125 leave out line 37.
Page 126, line 6, at end insert:
("1975 c. 23. Reservoirs Act 1975. In section 2(1), the words "and Wales".").
The noble Viscount said: Amendments Nos. 112 to 115 are technical amendments to the schedule. I beg to move.
On Question, amendments agreed to.
[Amendment No. 116 had been withdrawn from the Marshalled List.]
Schedule 16, as amended, agreed to.
House resumed: Bill reported with amendments.

Trade Marks Bill [H.L.]
Reported from the Public Bill Committee with amendments.

British Waterways Bill [H.L.]
A message was brought from the Commons that they had made the following orders.
That the Promoters of the British Waterways Bill [Lords] may, notwithstanding anything in the Standing Orders or practice of this House, proceed with the Bill in the present Session and the Petition for the Bill shall be deemed to have been deposited and all Standing Orders applicable thereto shall be deemed to have been complied with;
That, if the Bill is brought from the Lords in the present Session, the Agent for the Bill shall deposit in the Private Bill Office a declaration signed by him, stating that the Bill is the same, in every respect, as the Bill which was brought from the Lords in the last Session;
That as soon as a certificate by one of the Clerks in the Private Bill Office, that such a declaration has been so deposited, has been laid upon the Table of the House, the Bill shall be deemed to have been read for the first and second time and committed (and shall be recorded in the Journal of this House as having been so read and committed);
That all Petitions relating to the Bill presented in the last Session which stand referred to the Committee on the Bill, together with any minutes of evidence taken before the Committee on the Bill, shall stand referred to the Committee on the Bill in the present Session;
That no Petitioners shall be heard before the Committee on the Bill, unless their Petition has been presented within the time limited within the last Session or deposited pursuant to paragraph (b) of Standing Order 126 relating to Private Business;
That, in relation to the Bill, Standing Order 127 relating to Private Business shall have effect as if the words "under Standing Order 126 (Reference to committee of petitions against Bill)" were omitted;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the last Session.
House adjourned at a quarter past nine o'clock.