§ 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 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 EarlsferryPerhaps 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 725 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-DaviesI 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 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.
726
§
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
727
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
728
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 729 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 730 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 ElvelI 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.
731 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 EarlsferryIt 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 732 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 ElvelBefore 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 EarlsferryThe 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 ElvelPerhaps 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 EarlsferryI 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 HoosonI 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 EarlsferryI 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 733 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—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.
- (i) abolish the committee or
- (ii) alter any arrangements".
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 ElvelI 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 EarlsferryI 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 734 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 HoosonI 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 EarlsferryI 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 735 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 HoosonDoes 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 EarlsferryI 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 736 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 ElvelI 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 EarlsferryI 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 ElvelI 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 EarlsferryIn 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 HoosonI 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 738 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 EarlsferryI 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 WhiteI 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 EarlsferryI 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 WhiteAll I was saying was that one would not necessarily trust his judgment.
§ Lord HoosonI 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 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 EarlsferryI 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.
740 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 MorrisI 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 EarlsferryWe 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 MorrisI 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?
741§ Lord Prys-DaviesThe 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 742 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 HoosonI 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 743 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 ElvelI 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 EarlsferryTo 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 ElvelThat 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 EarlsferryThe 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 744 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 HoosonOn 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 EarlsferryI 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 745 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 ElvelI 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 GlaisdaleI 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 746 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-DaviesI 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 EarlsferryThe 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 747 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 ElvelWill 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 EarlsferryI 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 ElvelIf 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 EarlsferryBut 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-DaviesThat 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 EarlsferryI 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 GlaisdaleI 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 EarlsferryI have no hesitation whatever in agreeing with that proposition.
§ Clause 28 agreed to.
§ Clause 29 [Joint working arrangements]:
§
Lord Prys-Davies moved Amendment No. 73:
Leave out Clause 29 and insert the following new clause:
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.
§ 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 EltonWill 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" 750 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-DaviesThe amendment assumes that Clause 28 remains part of the Bill.
§ Lord EltonI 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-DaviesI 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 EarlsferryAs 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 751 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-DaviesI 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 EltonPerhaps 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 EarlsferryIt 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 EltonI 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 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 753 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 EarlsferryI 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-DaviesI 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 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 EarlsferryThe 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 754 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-DaviesThe 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 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
755
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 ElvelWhen 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 EltonPerhaps 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 EarlsferryTaking 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.
756 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 ElvelI 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 EltonI 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,757 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 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.
758§ Lord Rodger of EarlsferryThe 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-DaviesI 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-DaviesIt 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 HoosonI 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 EarlsferryI 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 759 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 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 760 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-DaviesI 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 moved Amendment No. 80:
Page 29, line 17, at end insert:
("( ) The Secretary of State may make regulations—
§ 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.
761§ 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 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 EarlsferryAlthough 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 762 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 MorrisI 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 EarlsferryIt 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 MorrisI 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]:
763
§
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 SwindonWhile 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—
§ Lord Stoddart of SwindonBearing in mind the excellent place—
§ Lord HoosonI am sure that the noble Lord appreciates that, like England, Wales is now a member of the Common Market.
§ Lord Stoddart of SwindonYes, 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. 764 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-DaviesNo.
§ Lord Stoddart of SwindonMy 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 EarlsferryI 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 765 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 SwindonThe 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 766 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 EarlsferryI 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-DaviesI 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 EarlsferryIf 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 HoosonDoes 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 EarlsferryI take comfort from the words:
considering and keeping under reviewwhich 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-DaviesI 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 EarlsferryThe 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-DaviesWe 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 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 768 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 SwindonI 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 HoosonI 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 WhiteWill my noble friends explain what will happen if one has a Welsh-speaking woman? Will there then be two?
§ Lord Morris of Castle MorrisWe 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 EarlsferryI 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 769 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 MorrisI 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 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:
770
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.
771§ Lord HoosonThere 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 SwindonI 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.
772 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 EarlsferryThe 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 773 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 CamdenI 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 EarlsferryI 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 774 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-DaviesI 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 EarlsferryI 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 HoosonWill 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 EarlsferryThe 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 775 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 SwindonBefore 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 EarlsferryWhat 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-DaviesWill 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 EarlsferryThe 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 CamdenI 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 776 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. DavidsI 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.