HL Deb 13 July 1994 vol 556 cc1895-960

8.27 p.m.

House again in Committee.

Clause 8 [Transfer of employees:]

Lord Carmichael of Kelvingrove moved Amendment No. 33:

Page 4, line 24, leave out ("may") and insert ("shall").

The noble Lord said: We come to a set of amendments which are vital to the Bill and are of particular importance to this side of the Chamber. I am sorry that my noble friend Lady Turner of Camden is not present. It is a subject with which she is extremely familiar and in fact she is quite an expert on it.

In my interpretation, Amendments Nos. 33 and 34 are paving amendments and vital for our other amendments, Amendments Nos. 35, 36, and 37. The purpose of the proposed powers under the new paragraphs is to ensure that protections equivalent to those provided in a transfer situation by the European Union Acquired Rights Directive and by the Transfer of Undertakings (Protection of Employment) Regulations —known as TUPE, and I shall say more about them in a moment —are applied to staff who are transferred to a new authority as the result of local government reorganisation.

That would result in all staff in post on transfer day being transferred to a new authority on the same pay and conditions of service as they enjoyed with the old authority. By framing the amendment in that way, instead of referring to the regulations and the directive, and specifying that they will apply, any ensuing difficulty in interpretation is avoided by dealing with the substantive issue and specifying quite simply that all employees will be transferred. It also ensures that when employees are transferred from existing to new authorities their salary and conditions of service in the short term remain unaltered and in the longer term are "not less favourable" than their existing salary and conditions of service. The provisions incorporate Sections 216(2) and 216(3) of the 1973 Act.

The proposed reorganisation will have a major impact on staff in local government. In looking to the future staff are entitled to expect that their interests will be protected by statutory provisions. The present reorganisation proposals are causing great anxiety among all local government staff. Despite assurances about the majority of staff being transferred, ministerial statements referred to job losses and redundancies which, when coupled with the limited scope of current draft compensation regulations for England and Wales, are creating a great deal of insecurity in the minds of employees. The consequent effect on staff morale will inevitably affect the delivery of services. There is therefore an urgent need to remove that uncertainty by amending the legislation.

In the last reorganisation of local government in Scotland the legislation ensured that all staff would be transferred to new authorities with pay and conditions of service protected on a "no less favourable basis". The same standard of protection should therefore be provided in the current proposals.

The European Union Acquired Rights Directive and the UK Transfer of Undertakings (Protection of Employment) Regulations are intended to provide legal protection to employees in transfer situations. It is now generally accepted that TUPE applies to the contracting-out of services under compulsory competitive tendering and to a wide range of other situations, including the transfer of a single employee. A legal opinion provided in connection with the reorganisation in England and Wales stated that in many instances TUPE would probably apply; and in addition UNISON, the main local government trade union, asked the European Commission to initiate measures to ensure that the Acquired Rights Directive was applied to local government reorganisation.

However, some doubt remains. Against that background the best way to avoid continuing uncertainty and probably judicial intervention is to amend the legislation to ensure that there is a clear commitment to transferring all staff in post on transfer day to the new authorities. Also we received assurances from the European Union that everyone's pension provision must be available.

A number of educated people and people who are thought to be reasonably sophisticated are continually asking what is meant by TUPE. Though it may be slightly unusual, at this point I should like to read into the record what are the basic elements of TUPE. The Transfer of Undertakings booklet states, When there is a change of employer to which the Regulations apply, the Regulations have the following effect: Employees' contracts of employment are transferred from the. old employer to the new employer. Employees have a limited right to object to the transfer. Collective agreements are transferred. The new employer is obliged to maintain trade union recognition arrangements. There is a duty on the old employer and the new employer to inform and consult with recognised trade unions before the transfer. Employees who are dismissed for a reason connected with the transfer can claim unfair dismissal".

I am sure that a large number of local authority employees will be reading our debates with interest and I thought it was important therefore that those points should be recorded. I beg to move.

8.30 p.m.

Lord Hughes

My noble friend spoke so completely in relation to this group of amendments that my contribution at this stage will be extremely small. I confine my remarks to Amendment No. 33 which seeks to substitute "shall" for "may". That is a general part of the clause which governs all the rest and reads, Subject to the provisions of this section, the Secretary of State may by order make provision with respect to (a) the transfer of employees from an existing local authority to a new authority with effect from 1st April 1996; and (b) any matters arising out of or related to such transfer".

I cannot imagine any circumstances where the Secretary of State will not make an order. Employees must be transferred, so what objection can there be to substituting "shall" for "may"? If the provision states that he "shall" make an order, it is merely saying what must definitely take place. I hope therefore that the Minister will find it reasonable to accept the amendment.

Lord Mackie of Benshie

I rise to support the amendments. The noble Lords, Lord Carmichael and Lord Hughes, stated the important points. I merely want to stress in relation to Amendment No. 35 that it is necessary for employees to know that their pay and general conditions of employment will be transferred on the same basis as when they were previously employed. If afterwards they are then made redundant or sacked —whatever one calls it—at least they will be sacked or made redundant on the terms on which they were previously employed. That is the least that we can do. It was done in the 1973 reorganisation to give some reassurance to people who must be extremely worried about their jobs, their futures, their homes and their mortgages. The least we can do is to repeat that reassurance.

The other point is that we shall have a larger number of directors of education; for instance, directors of work and so forth. People in big jobs will be employed in small jobs. It would be foolish to lose their capacity by trying to reduce their pay. It would be more competent and economic to employ the good people who were carrying out bigger jobs to do the smaller jobs and yet be left satisfied. There is not a tremendous pool of ability to draw upon at will and it is important for all sorts of reasons that these people are reassured that their pay and conditions will not be reduced because of government action.

Those are the points I want to stress. First, I want to remove uncertainty about pay and conditions in relation to the transfer; and, secondly, I want to ensure that able people who may be employed in a smaller job stay on and use their experience for the benefit of the community.

Lord Stoddart of Swindon

The noble Lord, Lord Mackie, is right to stress the problems which staff suffer when reorganisations of this kind apply. Those who have not been through this do not understand exactly what staff and their families are going through. They do not know whether next week, next month or even next year they will have a job, a job which they thought was theirs for life. I hope that the noble and learned Lord the Minister will take that into account.

My noble friend Lord Carmichael gave the arguments as to why, bearing in mind the TUPE regulations, we should pass these amendments: that there should be no shadow of doubt that we have done the right thing; that there is not a case to be taken to the European Court; that we have done everything correctly and above board; and that the Government cannot be challenged either in the courts of this country or in the courts of the European Community. My noble friend was right to stress that and I hope that the Government will take it on board. After all, the existing functions of Scottish local authorities are being transferred virtually intact to the proposed successor councils which assume full legal powers and responsibilities from 1st April 1996. Therefore, it must surely be logical that the staff of the existing authorities should be transferred en bloc.

There are possible financial benefits in doing just that. While some of the immediate revenue gains may be postponed, the transitional costs are also postponed and, indeed, may be reduced through extended opportunity for the redeployment of staff. We have seen in all kinds of other reorganisations staff being made redundant, with all the costs that that incurs, only to be taken on by the same organisations in sometimes similar capacities only a few weeks, or perhaps a month or two, later. There is also the necessity to avoid employing temporary staff. That is bad in itself and shows a bad example to the people who have been displaced by such temporary staff. Many opportunities will exist in the new authorities for retraining staff and redeploying them to cater for the needs of the new authorities, thus minimising the impact of the transitional costs themselves.

Furthermore, there are organisational benefits as new authorities will need time to determine their most efficient and effective management structures. Unless all staff are given the opportunity to transfer to the most appropriate authority, the new authorities may very well find that they have got rid of the very staff they most need to run the new organisation.

It seems to me that the amendment offers the Government the opportunity to do everything right: to do it right from the point of view of law so that they cannot be challenged in the courts; to do it right from the point of view of future organisation; and to do it right for the staff who will be moved and have their lives disrupted. For all those reasons the noble and learned Lord and the Government should accept the amendments.

8.45 p.m.

The Earl of Minto

As one who works daily with local government officers and staff I feel very strongly on this matter and I spoke to it at Second Reading. It is important for your Lordships to remember that the success of this transition will depend entirely upon the good will of our staff. Equally, it is important to remember the debt we owe them in having taken it for so long without any form of assurance. I am greatly encouraged by the fact that the noble and learned Lord said twice to me earlier today that since something was in the 1973 Act it must be there for good. In 1973 we did things correctly and I think that we owe our present staff as much attention now as we did then.

I would have to say to your Lordships—I am sorry if I have emphasised the fact that I work in local authorities—that there is a great deal of worry. It cannot be underestimated. I feel strongly that this amendment should receive the support it deserves. I am genuinely fearful that if it does not it could result in a great deal of hardship which would go far beyond the hardship of this Chamber and into the families of those whom we employ. On that basis I urge support for this amendment.

The Earl of Balfour

I am sure that everyone will have a great deal of sympathy with the amendments but the drafting of some of them, such as Amendment No. 35, leaves quite a lot to be desired. I must point out where I am a little concerned about guaranteeing employees work. Perhaps I may draw your Lordships' attention to Clause 8(4): No scheme … shall be made without the consent of the new authority or authorities". We must be careful not to insist that the new authorities take on perhaps more staff than they really need or that staff are paid at a higher salary than they are at present. I feel that these matters should be ironed out by the staff commission. Equally, if there is a failure of such consent, the Secretary of State comes in to protect the staff and protect everyone else.

Those are my only concerns. Local authority staff are some of the most dedicated people I have ever met. They are extremely loyal. I have sympathy with the amendment but we cannot dictate to the new authorities that everyone should be taken on.

Lord Rodger of Earlsferry

Everyone recognises that the issue of staff is a particularly sensitive one. The provisions in relation to staff will have been studied with particular care by all those who are affected, but it is important in this connection not to paint a false picture. The vast majority of those employed in local government will be transferred. Plainly, a school which comprises a number of teachers of say, French or science on 31st March 1996 will need the same teachers on the following day, so the teachers will transfer. As I have said, the vast majority of staff will transfer, so we are talking about a relatively small number of people who will not transfer. That is the first point.

The Committee will also note that the provisions in this chapter form a coherent whole. Clause 8 provides the mechanism for transferring employees. The noble Lord, Lord Carmichael, described this as a paving amendment—the noble Lord, Lord Hughes, also spoke to it—which seeks to provide that the word "may" shall be replaced by "shall". I understood it to suggest that all employees should transfer. I acknowledge that that was the broad pattern of what happened in 1973. However, the question for the Committee is: what is best for the employees? We could include in the Bill some mechanism whereby all employees would transfer on 1st April 1996. The question of exactly to whom they would transfer would need to be considered. It is not feasible to have them transfer en bloc, as the noble Lord, Lord Stoddart, suggested. The noble Lord will appreciate that we cannot transfer all the employees of Strathclyde Regional Council to one single authority. That is why there is a reference to "the appropriate authority". That suggestion is not even an option.

One must also ask: what will happen on 1st April 1996 and thereafter? My noble friend Lord Balfour points the way on that because, as he said, the new authorities must consider what is the appropriate staffing level for them. It would be wholly unreasonable for us to inflict new staff on the authorities. Of course, we could do that, but it would mean that the real decision on staffing was being postponed until that date. The Committee must consider whether it is wise —or even kind—to those who are going to be affected by the decisions to allow them to be artificially postponed until some time after 1st April 1996, thereby leaving those people in limbo between the date on which the Bill becomes an Act and the date on which the transfer occurs.

Would it not be much better to ensure that the shadow authorities themselves have to consider the staffing that will be appropriate for the new authorities when they take over in April 1996? Would it not be better to decide that as early as possible so that decisions can be taken as early as possible and those who are going to transfer will know as early as passible—and those who are not going to transfer will know as early as possible what package is available to them and can make their arrangements accordingly?

Lord Mackie of Benshie

The Minister appears to be putting the responsibility onto the shadow authorities. If that happens, the new authorities will have no choice. They will have to accept the staff provided by the shadow authorities. We are simply trying to ensure that any authority dealing with staff (and making them redundant) does that according to the terms and conditions under which those staff were engaged.

Lord Rodger of Earlsferry

The shadow authority considers what will happen when the reorganisation takes place. That is the whole point. It will have to consider what staff it will require. The Government believe that that is the best way forward. That is why Clause 8 provides for transfer orders to be made by the Secretary of State. As a result of an amendment made in the other place, there will be a scheme to provide for the employees who are to be transferred. Clause 9 shows the effects of such a transfer order. In very broad terms, the employees will be transferred with all the rights that would relate to their contracts if TUPE were to apply. Clause 10 provides for somebody who transfers to another local authority employer after only a short interval. Clause 13 provides the framework for compensation for those who, at any time after the passage of the Bill, find that they are to lose their jobs. That clause provides regulations governing their compensation scheme. The provisions of Clause 14 govern re-employment by a new authority. That is the broad outline of our thinking. We believe that those provisions are the best way forward.

We believe that in certain cases—perhaps in a large number of cases—TUPE will apply. There can be no suggestion—I am surprised to hear this being suggested even remotely—that UNISON has gone to the Commission in Brussels to ask it to ensure that the provisions of the Acquired Rights Directive (or TUPE) should apply. The Acquired Rights Directive binds the United Kingdom as a member state. We have fulfilled our obligations under that by introducing the TUPE regulations. The European Court of Justice has commented on our interpretation of them, but that is what we have done. TUPE is part of United Kingdom law, so there is no need for UNISON to go to the Commission to ask it to ensure that TUPE applies. There was no need for UNISON to waste its money in that way. A visit to the local tribunal or court would have been a visit far enough because TUPE is part of the law of Scotland, as it is of the law of any other part of the United Kingdom. We do not need anybody to tell us that.

The simple fact is that the Acquired Rights Directive is part of UK law by virtue of TUPE. We do not need to be told any more about it. Indeed, I was interested to see the noble Lord, Lord Stoddart, championing European law in that way. That was unusual, but inspiring. The noble Lord can rest assured that the tidal waves of European law have reached high enough up the estuaries of Scotland for us to be quite confident that TUPE and the Acquired Rights Directive apply.

However, those provisions do not apply in all cases. As with any other legislation, one has to consider the provisions alongside the facts of a particular case. One has to decide whether particular employees are or are not covered by those provisions. If they are covered by them, they can invoke those provisions as they could any other piece of law. If they are not so covered, they cannot invoke them. We believe that some employees will not be entitled to invoke the Acquired Rights Directive. Some of them may be transferred by virtue of the transfer orders of Clause 8. That will depend upon the circumstances. Where they are not covered by such an order, or the TUPE regulations, they may apply for one of the jobs in an open competition and they may obtain a job.

In that connection, Amendment No. 37A which forms part of this group of amendments and is in general part of the same issue seems to suggest—I understood it to be suggested during the debate—that when people apply for a new job they should carry with them all the terms and conditions of their existing jobs. That seems surprising. If one advertises a job surely the people who apply for it apply for it under the terms upon which it is advertised. It would be strange if someone who happened previously to be a director of some service on a particular salary could not apply for a new job except upon his existing salary terms. If that were to be the case, it is hard to see how he would ever win a job if other candidates were applying for it on other terms. With the greatest of respect to those who put forward the amendment, that seems to be muddled and not something that happens in the real world. Surely we expect that, on the reorganisation, those who are not transferred and choose to apply for jobs will apply for them and be appointed to them on the appropriate terms.

Lord Mackie of Benshie

Has the noble and learned Lord ever considered how such a person would feel? If an able man has to apply for a lower job at less money he will feel upset and look elsewhere. We shall lose that man. That is a human characteristic.

Lord Rodger of Earlsferry

I recognise, of course, that someone who loses a job in which he is paid a high salary and who has to apply for a job at a lower salary will find that disagreeable. That does not mean that it makes any sense for a smaller council, which may not be able to afford to pay such a salary or which might find that its whole salary structure was distorted by the payment of such a salary, to employ a person if that person could be employed only on his previous salary. That does not seem to be a realistic solution to the problem. If there are people who lose their jobs—it is accepted that there may be some—they should be free to apply for other jobs on the same terms as anyone else.

Although I understand the sentiments lying behind the amendments, they are not sensible in the overall context of the Bill. One must hope that when the reorganisation takes place people will understand as soon as possible their position and make the appropriate arrangements in the light of that. As I say, the amendment would not solve the problem. The TUPE regulations do not solve it. Even under the TUPE regulations it is recognised that economic, technical and organisational reasons are reasons for dismissing people. The regulations provide no panacea. There is no panacea for such a situation. When there is a reorganisation the best thing is for people to find out as soon as possible what the position will be. That points strongly in favour of the policy enshrined in the Bill.

Lord Hughes

I did not catch what the noble and learned Lord said in relation to Amendment No. 33 relating to "may" and "shall". Would he be kind enough to repeat what he said?

Lord Rodger of Earlsferry

I said that in so far as the amendment was not just a paving amendment, and if its intention was to oblige all employees to be transferred on 1st April 1996, that could be done. One could have a Bill which provided, as the 1973 Act did provide, for everyone to be transferred and for orders to be made transferring everyone on 1st April 1996, but that would solve none of the real problems. The best way is for a decision to be taken in advance as to which employees should be transferred. Those who are not to be transferred should be able to know their position and make their arrangements accordingly.

Lord Hughes

Amendment No. 33 has nothing to do with all employees. It merely alters the clause as it is at present. It provides: Subject to the provisions of this section, the Secretary of State may by order make provision with respect to". The amendment relating to "all" is the subsequent amendment, and is not affected by Amendment No. 33. Perhaps I may point out that we should be consistent in Clause 8. Clause 8(5) reads: 'The Secretary of State shall by order". I see no reason why subsection (1) states "may" while subsection (5) states "shall". It is obvious that under subsection (1) the Secretary of State will make an order. If there is anywhere that there might be doubt it is subsection (5) rather than subsection (1).

Lord Rodger of Earlsferry

I took the amendment in the same way as it was taken by the noble Lord, Lord Carmichael, when he opened the debate. He understood that it was a paving amendment for Amendment No. 35. The word "shall" would imply that an order relating to all employees had to be made. That is undesirable. I am happy to say that the Secretary of State will be making such orders. There is no question about that. What he will not be doing is making them in respect of all employees. In connection with the other amendment, I was taking that as a paving amendment.

Lord Hughes

The noble and learned Lord is entirely overlooking the fact that the amendment can stand even if none of the other amendments comes into effect. Obviously, it can be regarded as a paving amendment, but it can stand on its own.

It is ridiculous to provide that the Secretary of State "may" make an order but not that he "shall" do so when in the same circumstances subsection (5) provides that the Secretary of State "shall".

It has always been said that one should be consistent by using the same terms. Nowhere would that be more appropriate than in one particular clause of the Bill. The noble and learned Lord must do one of two things; he must alter "may" to "shall" in subsection (1) or he must alter "shall" to "may" in subsection (5). If the noble Lord says that that will be done anyway, it does not matter which way it is done provided that each case is the same.

Lord Rodger of Earlsferry

I do not wish to prolong this particular debate. I am sure that the noble Lord is familiar with the fact that the formulation in subsection (1) is well precedented and is often used in connection with an order-making power. That applies whether or not it is likely that it will be used.

The noble Lord wished to know why "shall" appears in subsection (5). I understand that it results from a concession that was made in another place to help to protect the special position of the fire brigade and the police force. The use of "may" is precedented and I have already said to the noble Lord that we envisage that such orders will be made.

Lord Hughes

All I can say now is that I give up!

Lord Monkswell

One of the purposes of the amendment is to provide reassurance to local government employees who face a difficult time ahead because they do not know what their future will be. The noble and learned Lord mentioned one category of local government employees—the teachers. I wish to press him a little further on that subject. Will the Government assure us that if the reorganisation occurs at the same time as a reduction in the revenue support grant for education, with the implication that some teachers must be made redundant, the transfer associated with the reorganisation will not be used as an excuse for making teachers redundant?

Lord Rodger of Earlsferry

Of course, there is no intention of doing that. The employment or non-employment of teachers will be a matter for the new authority. I was simply making the point that if on 31st March a local authority had a school in its area the new authority taking over on 1st April will have to man the school in the same way as did the previous authority on the previous day. In that situation, the teachers in that school will transfer, unless there is some peculiar circumstance. The vast majority of the services which had to be carried out on 31st March, will have to be carried out on 1st April.

The idea that this will be an occasion for a huge number of redundancies is beside the mark. The number of redundancies will be comparatively small and will be in certain grades rather than those in those which, for example, cover teachers.

9.15 p.m.

Lord Ewing of Kirkford

This has been an important debate because we have been talking about human beings, about staff. I am getting worried about myself because I am beginning to feel sorry for the noble and learned Lord the Lord Advocate. He has my sympathy because this is not the first local government Bill that the noble and learned Lord has dealt with during this Session. He had ministerial responsibility in your Lordships' House for the Welsh local government Bill. He must be confused. In the Welsh local government Bill, that scheme is now clearly laid out. In relation to the transfer of staff in that Bill, for which the noble and learned Lord was responsible in your Lordships' House, there is now an undertaking that the new authorities will take over all the contractual obligations of the existing authorities. That was contained in a statement made in another place by Sir Wyn Roberts in Hansard of 16th June.

The statement went even further. Sir Wyn Roberts laid out the redundancy payments scheme, explaining that an employee under 50 years of age who was made redundant—in other words, who did not transfer because the new authorities could not find a place for him—would receive a maximum payment of 66 weeks' salary and there would be a minimum floor below which the payment would not fall.

The crucial point and the major difference is that in the case of the Welsh local government Bill, for which, as I say, the noble and learned Lord was responsible, a clear scheme is laid out to protect the employees. The local government employees in Scotland, as in Wales, have contracts of employment. It was noticeable that the noble and learned Lord did not deal with the question of those contracts. I admire his confidence. He used the example of teachers. He said that if the new authority had a school on 31st March, the same number of teachers would be needed on 1st April. But that is not what the new authorities are about.

I apologise to the Committee for returning to the example of Central Region. If the new Stirling unitary authority has a primary school which is under-pupilled and the new Clackmannon unitary authority has a primary school which is under-pupilled, there is a strong possibility that one or other of those two authorities will buy the spare places in the primary school which is under-pupilled. In those circumstances, one of the schools will close. Therefore, there is no guarantee that all teachers will transfer on 1st April 1996. In my view, the only two groups of local authority workers who can have any confidence in a continuation of employment are police officers and firemen. I do not: see any other guarantees which could be given to any other groups of employees.

Perhaps I may deal now with the whole question of TUPE. The noble and learned Lord went into some detail about the directive and about its inclusion in UK law as a result of an amendment to employment legislation. There is now a strong body of legal opinion that says that if an employee is made redundant as a result of a transfer under local government reorganisation, that would be an unfair dismissal. The economic, technical and organisational question would not apply. There would be strong grounds for those employees pursuing a case of unfair dismissal.

The noble and learned Lord said that there will be no large-scale redundancies. I know what the Government are depending upon. They are depending upon the present authorities encouraging staff to take redundancy payments or to accept severance arrangements between now and April of next year, or certainly between now and 1st April 1996, so that the cost of those redundancies does not fall at all on the new authorities. That is where the Government's estimates of the cost of reorganisation go awry because they are depending heavily on the existing local authorities bearing the costs brought about by fairly substantial redundancies before reorganisation takes place. That is how they reach their 700 to 800 figure.

When one talks to local authorities a more realistic picture is presented. The figure of expected redundancies is certainly much higher than 700 to 800. That figure is for redundancies under the new authorities, not under the existing authorities, and not as a result of the transfers, amalgamations or changes to unitary authorities or single-tier authorities. It has nothing to do with that. The Government expect existing authorities to encourage present employees to accept severance arrangements in anticipation of the authorities disappearing. I am no professional, but my strong advice to staff would be not to bite that carrot; they should not take it. They should wait until the new authorities come into being.

I return to the proposals contained in the Welsh local government Bill. I am not sure whether that Bill will return to this Chamber. I see that the noble and learned Lord indicates that it will not do so. But even the regulations that the Secretary of State has given an undertaking will be laid by November 1995, following the initial elections, will be published in three sets. First, there will be the regulations for those who do not wish to transfer, setting out the conditions upon which they will be treated; secondly, there will be another set of regulations for those who do transfer; and, thirdly, there will be yet another set of regulations for those who are made compulsorily redundant, although the Secretary of State naturally hopes that there will be no such redundancies.

That is a vast difference from the way in which local government workers in Scotland are being treated. At least local government workers in Wales at present know roughly—though not down to the last detail— where they stand. But no one can say that about local government employees in Scotland. Indeed, they have absolutely no idea of what will happen. To suggest that all that should be left until the new authorities come into being is only adding uncertainty to uncertainty.

In conclusion, I must tell the noble and learned Lord that, in my view, we need time to give this part of the Bill further consideration. It is not a trivial matter. One of the greatest resources that Scottish local government has is its staff. We must treat that resource with the greatest of respect. Therefore, we need time to give further thought to the matter. On that basis, I beg leave to withdraw the amendment on the absolute guarantee that we shall return to such matters on Report.

Amendment, by leave, withdrawn.

[Amendments Nos. 34 to 37A not moved.]

Clause 8 agreed to.

Clauses 9 and 10 agreed to.

Clause 11 [Remuneration of employees of local authorities]:

Lord Thomson of Monifieth moved Amendment No. 38:

Page 7, line 51, at end insert: ("(9) An order made under subsection (8) above shall be subject to annulment in pursuance of a Resolution of either House of Parliament.").

The noble Lord said: Amendment No. 38 follows very much the discussion that has just taken place. We now find ourselves with a series of clauses that deal with the more sensitive of the human issues regarding the changes that will flow from the Government's proposals for local government reform. I have no doubt that there will be a debate on whether the clause should stand part of the Bill, so I shall confine myself to the rather narrower point that I should like to make by way of my amendment.

I speak from these Benches, but I am really commending to the Government the views of the 10th report from the Delegated Powers Scrutiny Committee of this Chamber. In dealing with Clause 11(8) the Committee drew attention to the contents of the clause and suggested that this Chamber might wish to consider whether the negative resolution procedure would be appropriate for orders made under that provision.

I notice from the report of the committee (under the chairmanship of the noble Lord, Lord Campbell of Croy) that the Government said that they were ready to consider the matter further. I shall only add that it is an extremely sensitive matter for which there are views on both sides. Indeed, they are views about the problems of excessive expenditure in terms of the transfers that finally take place and there are also very strong views about equity and justice for the people who are affected.

The clause proposes that the Government should be bound by an advisory body that they propose to set up, but without the final possibility of parliamentary review by the annulment procedure. We have had some discussion, inevitably, in the course of our debates on the degree to which the Government seem to resort to quangos in terms of their policy-making. I should have thought that, in view of the extreme sensitivity of these issues, the Government would be well advised to adhere to what is certainly the implied advice of your Lordships' own Delegated Powers Scrutiny Committee and ensure that at the end of the day there is a parliamentary recourse and that an annulment procedure is available. I beg to move.

Lord Rodger of Earlsferry

I think it is sufficient if I indicate to the noble Lord, Lord Thomson, that the Government are happy to accept the amendment which he has moved. It does, as he said, put forward the view of the scrutiny committee. It brings the second order-making power in this clause into line with the provision on the first order-making power. I agree that it is entirely appropriate and I am happy to accept the amendment.

Lord Ewing of Kirkford

This moment feels like Cowdenbeath winning the European Cup. This is the first amendment that we have had accepted. I congratulate the noble Lord, Lord Thomson of Monifieth, on his eloquence. I will take a leaf out of his book and not talk too long. This provision, to a certain extent, meets only in a minor way the objections that we have to Clause 11. Although now the Secretary of State will have to lay an order and that order can be annulled by both Houses, I think it is worth while pointing out that the sweeping powers that the Secretary of State takes in Clause 11 are unprecedented in employee/management relations. There is the power to control increases in salaries; to decide the level of an offer that should be made to staff, and to interfere in almost every aspect of employee/management relations. That is unprecedented in the field of industrial relations. From time to time we have referred to the 97 items in the Bill which give powers to the Secretary of State, a substantial number of which are contained in Clause 11. But having said that, and against the background of the acceptance of the amendment of the noble Lord, Lord Thomson, I am content to leave my comments at that.

Lord Thomson of Monifieth

Before the Question is put, I wish to express my thanks to the noble and learned Lord the Lord Advocate for agreeing to this amendment. In our long hours of work here it is a rare experience to have an amendment accepted by those on the Government Front Bench and we want to make the most of it. I thank the Minister very much.

On Question, amendment agreed to.

[Amendments Nos. 39 and 40 had been withdrawn from the Marshalled List. ]

Clause 11, as amended, agreed to.

Clause 12 [Staff commission:]

The Deputy Chairman of Committees (Lord Grantchester)

I must inform the Committee that if Amendment No. 41 is accepted, I cannot call Amendment No. 42. I now call Amendment No. 41.

Lord Carmichael of Kelvingrove moved Amendment No. 41:

Page 8, line 37, leave out paragraph (a).

The noble Lord said: The purpose of this amendment is to delete the power of the Secretary of State to give directions to the staff commission. The principal intent of the proposed amendments to Clause 12 is to specify in the primary legislation the exact role of the staff commission. The intention that the Staff Advisory Committee and the subsequent staff commission is to be an independent body is not doubted. However, the perceived independence of the staff commission is questionable if the Secretary of State has powers to direct the staff commission. The power of the Secretary of State to give directions to local authorities should only be at the request of the staff commission in carrying out its statutory functions. Only by removing that power of the Secretary of State to direct the staff commission can it be perceived to be operating completely independently in respect of its remit.

Amendment No. 43 is grouped with the amendment. The purpose of that amendment is to delete the wording as indicated in the amendment. I beg to move.

9.30 p.m.

Lord Rodger of Earlsferry

The effect of the amendments would be to remove the provision specified in relation to the staff commission. There is no intention on the part of the Secretary of State to interfere with the independence of the staff commission. The intention is that the Secretary of State might give the staff commission directions to ensure that it carried out its functions in an acceptable manner. For example, he might direct that it should establish an appeal mechanism to hear cases relating to employees who felt that they had been unfairly treated. That is the type of action which is envisaged in the provision.

It is also envisaged that in certain circumstances it might be appropriate for the Secretary of State to direct the commission to investigate the arrangements being proposed by a particular authority where those arrangements seemed to be out of line with the general arrangements of other authorities. The purpose is to provide the Secretary of State with advice on that particular matter.

The noble Lord, Lord Carmichael, did not speak to Amendment No. 43, which covers the second part of subsection (4) (c). It relates; to the payment of expenses incurred by the commission in doing anything requested by a particular authority. The purpose of that provision is that the Secretary of State could give a direction to an authority where that authority had asked for a particular service from the staff commission. In that instance it would be thought appropriate that a direction should be given as to payment for that particular service which had! been requested by the authority.

The amendments appear to proceed on the basis that the provisions in the Bill are designed in some way to fetter or interfere with the independence of the staff commission. I can assure your Lordships that they are not. They are intended to deal with the type of situation which I have outlined.

The Earl of Minto

It was my pleasure to welcome the Staff Advisory Committee to my region not long ago, since Borders Regional Council happens to be the first council in Scotland to have established a joint advisory committee with four districts in preparation for Royal Assent of this Bill. During the meeting, which lasted for about two to two-and-a-half hours, it was my clear impression that the Staff Advisory Committee was made up of strong-minded and independent members —both female and male—under the chairmanship of Mr. Peggie, who is a highly respected chairman. He has in the past been chief executive of Lothian and an ombudsman. I find it extraordinary to consider that the Secretary of State should wish to take powers over and beyond the body which has been set up to act eventually as a staffing commission. I am not taken by the arguments of the noble and learned Lord the Lord Advocate. I do not believe that they pertain. If the Staff Advisory Committee (as it now is) is doing its job, it ought to have sufficient knowledge—I am certain that it does—to take account of the points raised by the noble and learned Lord. I support the amendment.

Lord Stoddart of Swindon

The noble and learned Lord the Lord Advocate sounded very reassuring. We shall wish to read what he said. However, I hope that he understands the sensitivity of trade unions in this matter. They may well see the issue as a threat to their negotiating rights about many factors including superannuation, conditions of service, and so on. I hope he understands that the amendment is relevant. There are serious fears that the Secretary of State might have wished to interfere in reasonable arrangements which have been continuing successfully for a long period of time. As I said, the noble and learned Lord sounded very reassuring. We shall read his remarks with interest.

Lord Carmichael of Kelvingrove

I also felt that the noble and learned Lord was reassuring. I am sure that he spoke with total good faith. However, what happens ultimately will not necessarily follow the thoughts genuinely conveyed to the House.

What worries me about the Bill is that although we spend a great deal of time on boundaries, and the concept of the Bill was to make democracy better by changing from a two-tier to a single-tier authority, we now seem to be in a position which is dangerous and important for many public employees. It is the wrong thing to say to the Scottish Office, but the matter is Treasury led. Every measure seems not necessarily to improve democracy but to reduce staff quite drastically. If that is so, after all these years in power the Government have not been able to use their considerable influence to slim down local authority staff. If, as it appears, there will be a large number of redundancies, I find the situation very threatening.

However, the noble and learned Lord's statement on the independence of the commission was reassuring. We shall keep a careful eye on the whole matter as it develops. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 42 to 44 not moved.]

Clause 12 agreed to.

Clause 13 [Compensation for loss of office or diminution of emoluments]:

Lord Ewing of Kirkford moved Amendment No. 45:

Page 9, line 31, at end insert: ("( ) Without prejudice to subsection (2) above, the regulations made under this section shall amend Regulation E2 of the Local Government Superannuation (Scotland) Regulations 1987 so that any person who—

  1. (a) is the holder of any such office or is in any such employment as may be prescribed for the purposes of this subsection; and
  2. (b) attains or has attained the age of forty-five on or before 31 March 1996 but has not attained the age of 50 at that date; and
  3. 1910
  4. (c) fulfils such other conditions as may be prescribed, shall be eligible to receive the benefits payable to or in respect of him under the relevant superannuation scheme on the date he attains the age of fifty.").

The noble Lord said: On behalf of my noble friend Lord Macaulay of Bragar, I beg to move Amendment No. 45 and for the convenience of the Committee, speak to Amendment No. 46.

The amendments deal with pension rights and severance payments for staff of local authorities who are made redundant as the result of the reorganisation. Amendment No. 45 suggests that the pension age for those who are made redundant and who are entitled to receive their pension at the point of redundancy should be reduced from 50 to 45 years of age. There is a good reason for arguing that case.

Before I present that reason to the Committee, perhaps I should explain that the present position is that any local government employee who is made redundant under the age of 50 has to wait until he is aged 60 before he can receive his superannuation pension payments. Any local government employee who is made redundant at the age of 50 or over receives his superannuation pension payment immediately he is made redundant.

The reason we argue for that in Amendment No. 45 is this, and we urge the Government to accept the amendment. The Minister himself said earlier this afternoon that substantial numbers of people had left local government service over the past few years. They have been of the older age group and therefore the age profile of the staff who work for local government is now much younger than it has ever been in the history of local government in Scotland. A strong possibility is that anyone made redundant as a result of this reorganisation could easily be under the age of 50 because local government in Scotland has run out of elderly people to make redundant. That is a proposition which I hope the Government will seriously consider. The age at which a person is made redundant and can receive his superannuation straightaway should be reduced from 50 to 45.

I turn to Amendment No. 46 and severance payments. In an earlier debate, I mentioned the arrangements that have been announced in another place in relation to Welsh local government workers. It may seem strange to the Committee that in Amendment No. 46 I argue for much more generous arrangements in relation to local government workers in Scotland against the background of the Bill. The precedent for my submission is the treatment that local government workers in England received when, first, in 1986 the Greater London Council was abolished, followed quickly by the abolition of the metropolitan counties. At that stage, local government workers who lost their jobs as a result of the abolition of those local authorities received up to a maximum of 86 weeks' severance payment. We argue for the same treatment under this Bill for local government workers in Scotland as was received by local government workers who lost their jobs as a result of the abolition of the GLC in 1986 on the one hand and the metropolitan counties on the other.

This evening of all evenings, it is possibly worth while mentioning that until the present time—and we do not know what the future holds, we are in the same position tonight as many civil servants, we do not know what the future holds for them—the maximum number of weeks that a civil servant would receive if he were made redundant is 156 weeks, three years. We are not asking for that, but we certainly ask for the same treatment as was given to the GLC workers and the metropolitan county workers.

There is one other point before I resume my seat. It is the question of employees who are made redundant and who are over the age of 50 but not yet 60. It is common practice in most public authorities and many private companies that in such a situation the employees are given added years to enhance their pension as if they had worked to the age of 60. Amendment No. 46 would have that effect as well. It is quite common practice throughout many public authorities and in private industry that where employees are made redundant over the age of 50 they are given the opportunity to uprate their pension as if they had worked up to 60.

I hope that what I have said has persuaded noble Lords opposite at least to have a detailed look at this matter. If we cannot get a generous response from the Government tonight, perhaps we can find them in a much more generous mood in October when this House returns.

9.45 p.m.

Lord Mackie of Benshie

I rise to support the noble Lord in Amendment No. 45. Obviously, I also support Amendment No. 46, but this particular amendment is very important. I was not sure whether the noble Lord, Lord Ewing, made it quite clear that what we are trying to do here is enable people who are made redundant over the age of 45, when they reach the age of 50, to trigger the superannuation benefits.

I know some young people of 45 and over who are looking for jobs. It is perfectly true that today it is extraordinarily difficult to get one. Employers look for people who are developing and very often, for some extraordinary reason, people of that age are considered to be past it, although they are in the prime of life, having been removed from the job that they know well. All that we ask in this amendment is that such people, if they so wish, can trigger the superannuation benefits when they reach the age of 50. The Government must see that this is a reasonably fair process and that it would certainly alleviate the distress that is bound to be felt by many people who are made redundant at that age.

Lord Stoddart of Swindon

I, too, hope that the Government will accept these very reasonable amendments. As has already been pointed out, once people are over the age of 45 they are virtually on the shelf. We have to emphasise that the staff of local government in Scotland did not ask for this reorganisation. It has been foisted, or at least imposed, upon them against their will. Many of them believe that the existing forms of local authority have performed reasonably well and they do not wish to alter them. This is being done against their will.

Undoubtedly, bearing in mind that there is still high unemployment not only in Scotland but in the rest of the United Kingdom, those people will find difficulty in getting work. They are therefore entitled to be treated generously. The people in local government in Scotland would be entitled to feel outraged if they were treated any worse than were the staff of the metropolitan authorities. Those of us who do not live in Scotland —we may have some connections with it but live in England—are very sensitive to the views of our countrymen north of the Border. We do not wish them to be treated any worse than people south of the Border. They are entitled to equal treatment. We do not like them to feel resentful against their southern compatriots who, after all, wish them well and wish them to be treated decently and equally. Therefore, I hope that the Government will get up and say what marvellous amendments these are and that they are prepared to accept them with alacrity.

Lord Rodger of Earlsferry

Hope springs eternal, but it is not always realised. I cannot fulfil the noble Lord's hope on this occasion.

I stood at this Dispatch Box on a number of occasions, during the passage of the Welsh Bill. During the course of that Bill I had the pleasure of hearing a not entirely dissimilar speech to that delivered by the noble Lord, Lord Stoddart. Let me make quite clear that I am more than well aware of the provisions relating to the same matter in Wales. I was roundly criticised on a number of occasions during Committee and Report stages for not having brought forward for Wales at those stages the particular draft regulations proposed in connection with this matter. The position is that they have become available for Wales only very lately.

The reason why the regulations are not available for Scotland at this stage is that my right honourable friend the Secretary of State, having gone to all the double of setting up a staff advisory committee (which in due course will be a staff commission)—a body whose membership has been widely welcomed—has thought it right, in the spirit of the legislation, to seek its views on the regulations which might be made in terms of Clause 13 when in due course that power is available.. Had he not done that, I have no doubt that noble Lords opposite would have been ingenious in criticising the Government. He will wish to consider the committee's advice as to whether there are any particular circumstances in relation to Scotland which would have a bearing on the regulations which he should make for Scotland.

I take the point made by the noble Lord, Lord Stoddart, that in broad terms one would expect the kind of compensation for Scotland to be similar to that available under the current proposals for England and for Wales. That seems to me to be a true comparison rather than a comparison with the provisions for the GLC in 1986. It seems to me that if the provisions for England, Scotland and Wales are the same or broadly similar, it fulfils the necessity for equality which I and I am sure all Members of the Committee entirely accept.

Having said that, my right honourable friend rightly wishes to consider any particular observations that his advisory committee might make in respect of the regulations. It is for that reason that they are not yet available.

At this stage I cannot predict the content of the regulations. However, noble Lords may have seen the provisions for Wales and those for England, which will give some indication of what is in mind. So far as concerns pensions, there is no need for any new set of regulations for people of 50 and over. They are already covered by regulations made in 1979 which deal with their pensions, provide for additional years and so on. What the regulations will provide for those who are differently placed is a matter to be considered once the advice of the committee is available. In due course, the regulations will be available. No doubt they will be consulted upon and at that stage noble Lords will make known their views. I believe that that is the correct way forward; the amendment seeks to pre-empt, in a way which is not proper nor desirable, the content of the regulations. In due course the content of the regulations will come into being, once consultation has taken place.

The Earl of Balfour

Before my noble and learned friend sits down perhaps I can ask a question. Under Clause 13 the Secretary of State deals with compensation for loss of office and so forth. I was wondering whether the matter would be improved if the staff commission, found under Clause 12, which is to investigate the position, was brought into the provisions of Clause 13. The staff commission is not mentioned in Clause 13 and I feel that it should be.

Lord Rodger of Earlsferry

The Committee will have observed the terms of Clause 12 and in particular of subsection (2) (c) which, as part of the functions which may be conferred on the staff commission, includes the function of advising the Secretary of State as to the steps necessary to safeguard the interests of members of staff. That would cover the situation to which my noble friend referred.

Lord Mackie of Benshie

I am a little disappointed in the reply of the noble and learned Lord. I thought he would comment on the specific plight of those aged 45 and over who are made redundant. It is a human situation, particularly in today's economic climate and the difficulty that people experience in obtaining work. Can the Minister comment specifically as to whether or not he thinks that marginally it must be right that if someone over 50 is entitled to claim the benefits, then someone who is still redundant at the age of 46 or 47 should be able to do so also when he reaches 50?

Lord Rodger of Earlsferry

Obviously the plight of the group to which the noble Lord refers can be serious. There are other situations which are also serious. I accept that. But I cannot say what is the appropriate method of dealing with that group. It is a matter which must be considered. The Secretary of State is considering the views of his advisory committee on the appropriate compensation regulations. I have no doubt that the plight of those people will be one of the matters which in due course he will wish to consider. What the appropriate result will be I cannot predict.

Lord Ewing of Kirkford

I am grateful to the noble and learned Lord. He encourages me to withdraw the amendment on the basis that, if the staff commission recommends to the Secretary of State that the age should be reduced from 50 to 45 and if the staff commission recommends to the Secretary of State that those retiring over the age of 50 should be given the same generous treatment—not too generous—as was given to the workers in the GLC and the metropolitan counties, that is advice that the Secretary of State will seriously consider. I hope that the job will not be done the other way round; in other words, that the Secretary of State tells the staff commission what he wants it to say.

I shall withdraw the amendment on the basis of what the noble and learned Lord said. I am always interested when I hear potential "wearers of the red jersey"—as we say in Scotland—talking about pensions. For those Members of the Committee who do not know what potential "wearers of the red jersey" are, it means High Court judges. Whenever I hear potential High Court judges discussing pensions I am always interested in their views.

My final word, before I withdraw the amendment, is to my noble friend Lord Stoddart of Swindon. I will never accept that anyone over 50 is on the shelf. I can find many people who will testify to that. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Clause 13 agreed to.

Clause 14 agreed to.

10 p.m.

Clause 15 [Transfer of property:]

Lord Ewing of Kirkford moved Amendment No. 46A:

Page 11, line 19, at end insert: ("( )An order under this section shall require a new authority (that is a local authority, residuary body, joint board, or water and sewerage board), to establish a professional property management and advice facility, within its core management structures; and with the object of managing the procurement and care of all property transferred to the authority, and providing a professional advice service to the managers of devolved properties".).

The noble Lord said: In moving this amendment, I shall speak at the same time to Amendment No. 48A. I say at once that I did not think up the amendments, nor would I claim the credit for them. They come from the Association of Chief Architects of Scottish Local Authorities which is worried about the whole question of transfer of property.

Local government has three major assets. The first has been mentioned extensively in our debates. I refer to the staff. The second is the finance that is available to local authorities. The third is the crucial asset of property. It is not the case that property will just be transferred from one local authority to another. Much of the property will be transferred to ad hoc bodies. The joint boards that are to be established will have property transferred to them: in the case of the police, the police buildings and police property; in the case of the fire brigade, the fire brigade property. Substantial amounts of property will be transferred from local government to these ad hoc bodies.

I support the view of the Association of Chief Architects, as contained in the amendments, that there should be a professional input at core management level in relation to the transfer of property. I hope that the Minister will give this the most serious consideration because it involves high-value property in respect of which professional advice is of the utmost importance. I beg to move.

The Earl of Balfour

Although there is provision in the Bill for property to be transferred—perhaps from an existing regional council to, for argument's sake, a water board—I wonder whether there should be a provision as existed under the old feu charters, whereby the new authority could not dispose of a transferred property without the approval of the successors to the original owners of the property. In other words, in the case of a water board property, the new authority would have to go back to the local authority and get approval before it could dispose of the asset. There needs to be some provision within the legislation in relation to this point. The old-fashioned feu charters might be a way of doing that.

Lord Fraser of Carmyllie

The noble Earl put forward an interesting proposition. One problem that might have to be confronted if his proposal were adopted is that some of the bodies from which the property might be transferred might, in law, have disappeared. It might be difficult in some circumstances —I am not saying that it would be difficult in all circumstances—to discover whether or not those bodies had given their consent or approval to such a transfer. Nevertheless, I am happy to reflect on what has been said.

I entirely agree with the noble Lord, Lord Ewing, that the property of local authorities in Scotland is an extremely important matter, as is the value of their experienced staff. I entirely agree with the noble Lord further that, where property is to be transferred, it merits careful and professional consideration. I say with some reluctance that where we may part company is that the amendment would insist that local authorities should make that provision in a particular way. Some councils may, for example, choose to use outside contractors for much of their work. Like any other function, that is a matter for the councils themselves to decide. Therefore, in our view it is inappropriate for such a restriction to be imposed. If anything, we are seeking to loosen the reins on local authorities and the ways in which they choose to organise themselves. Although I do not depart from my agreement with the noble Lord on the importance of ensuring that that is done properly, it seems unduly restrictive to insist that it is done in a particular way.

As we have reached amendments dealing with property, I hope that I can assure the Committee that the Government will be giving careful thought to the contents of any transfer orders. As the Committee will be aware, our intention is to discuss the detail with local authorities and with the property commission, if such a commission is set up—I stress the conditionality of that —before making any orders. Therefore, although I do not disagree with the intention of the noble Lord (or those who invited him to table the amendment which has enabled us to have this short debate) the suggested route seems unduly restrictive.

Lord Macaulay of Bragar

Before the Minister sits down, perhaps I should point out that it is now 10.7 p.m. and, so far as I can see, we are now one-third of the way through the evening's business as projected on the Marshalled List.

Is it proposed that we sit here until goodness knows when tomorrow morning to discuss these matters of great importance to the people of Scotland? These matters deserve our attention and should not be treated as an adjunct to the parliamentary procedures of the United Kingdom. I am supported not only by my noble friends when I say that it is absolutely disgraceful—it could be put more strongly than that—that we should be considering such a major piece of legislation (which runs to goodness knows how many pages) at this hour of the night.

I say that particularly in the light of what the Secretary of State said in the other place about taking another look at Scottish legislation. He referred to how Scottish legislation will be dealt with so that we can all talk about it in Scotland, and all that nonsense However, here we are with about 20 or 30 Members of your Lordships' House present to discuss such a major change to Scottish legislation and it looks as though we shall have to be here until two or three a.m. I can tell your Lordships that I am not prepared to sit here until three a.m. although we are discussing matters of great importance to the people of Scotland. If that is what the; Government want, their representative, the noble and learned Lord, should tell the people of Scotland that that is how they want us to discuss such matters of great moment to the people of Scotland. He should send a message home telling the people of Scotland that we have to discuss such business at two or three a.m. How many people in the world could discuss such things rationally at two or three a.m.? I can think of an answer to that.

How many people make serious decisions in their lives at two and three o'clock in the morning? It is projected that the debate will go on until two o'clock in the morning. I am not going to sit until that time discussing the lives of the people of Scotland. I speak from the Back-Benches. I have no authority to speak for anybody else, but I hope that my Front Bench colleagues will support me. I have not even discussed it with them, but I think that it is disgraceful.

Lord Fraser of Carmyllie

I am not sure what to say to the noble Lord. I have discussed matters in the past with the noble Lords, Lord Ewing and Lord Carmichael, rationally, in detail and with great expertise until much later than three o'clock in the morning. I do not want to sit unnecessarily late; but we have important matters to discuss. I say with respect that if the noble Lord had been here over the past one and a half hours, he would have heard some extremely sophisticated debates on matters of great importance. I hope that we can now continue to make some progress on the Bill. It is important that we do so.

Lord Hughes

In the other place, the Committee considered the Bill much longer than we are going to be doing, but at least it considered it under provisions where it stopped at 10 o'clock at night.

Lord Stodart of Leaston

I am spurred to my feet by the noble Lord's remarks. We are all a bit older than we used to be, and as a rule I come here to make what my noble and learned friend tells me are unhelpful speeches in support of the Government. I am bound to say when I hear that we should not be sitting until two o'clock, that takes me back to what I call the vintage days in another place. I remember the late Lord Ross relishing keeping us up until three in the morning, with no sign of fatigue or anything like that. I well recall when discussing a Bill to do with credit lending in Scotland being kept up until half past three discussing numerous amendments, and then tottering off to catch the five o'clock aircraft to the Highland Show in Edinburgh.

One was younger then; but I must say that I think the Opposition are losing their spirit a little if they are complaining. The noble Lords on the Front Bench are carrying out a remarkable exercise of speaking for a certain length without giving the slightest impression that they are spinning matters out. I do not believe that they are. I would not dream of suggesting that. It takes one back again to the days when the great exponents of Labour Party opposition (Mr. Ross and Mr. Willis) would talk for an hour on the difference between the words "shall" and "may". We endured it all, and we came up smiling. I strongly recommend to the Opposition that they do not give the impression of lacking the spirit and lustre of opposition.

Lord Ewing of Kirkford

Before returning to the amendments, perhaps I can say that the only reminiscence I will share with the Committee is that many times, at five o'clock in the morning, when I was in another place, I used to say to myself, 'To think I left the Post Office to get rid of these early rises"! That was in the days when I never got to bed, so perhaps we could continue for some time yet.

I am grateful to the Minister for his constructive comments on the amendments. Against the background of those constructive comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 agreed to.

10.15 p.m.

Clause 17 [Educational endowments]:

Lord Carmichael of Kelvingrove moved Amendment No. 47:

Page 13, line 18, at end insert (", and any such scheme shall continue in effect the provisions of any scheme made by an existing authority in accordance with section 105 of the Education (Scotland) Act 1980 the terms of which have been agreed by a new authority or authorities.").

The noble Lord said: I shall not comment on the timing in the other place except to say that noble Lords who were Members there will remember that on some mornings, in particular during debates on the Finance Bill, you were grateful for the terrace because you felt like jumping over to cool down. Perhaps when looking back one takes a slightly romantic view, but at the time it was pretty dreadful and I am sure that the noble Lord will accept that.

The justification for the amendment is that the transfer of educational endowments should as far as possible be achieved via agreement between authorities rather than a decision of the Secretary of State, whose powers should be used only when no agreement between authorities can be reached. Subsection (7) limits the Secretary of State's powers to make no more change than appears to him to be necessary or expedient following local government boundary changes. In reality, that is a wide-ranging power and it allows decisions that should be made locally to be taken by a central authority.

Subsection (6), although detailing the extent to which the Secretary of State may act, overlaps with Section 105 of the Education (Scotland) Act 1980. It is important that clarification is given by the Minister as between this provision in the Bill and Section 105 of the 1980 Act. No provision is made in the Bill to allow local authorities the possibility of reaching agreement on the transfer of educational endowments. We believe that safeguards are required to ensure that endowments are not weakened in their effect or operation and that the original purpose intended by the people who left the endowment is not lost during the transfer.

One of the ways in which that may be achieved is to ensure local relevance by providing for and facilitating the operation of agreements between authorities where an endowment has to any extent been vested in the existing local authority, which may be divided by this Bill into different unitary authorities. Many such cases must occur in Glasgow, Edinburgh, Lothian and Strathclyde in particular.

The amendment allows the new authorities to reach agreement among themselves on the future of the endowment rather than passing that power to the Secretary of State. The local authority, through its local knowledge, will be able to ensure that the spirit of the original endowment is continued.

The noble Lord, Lord Stodart, will remember that in relation to one of the health Bills for Scotland there were tremendous problems with endowments to hospitals. Two days were spent in Committee discussing a famous case in Edinburgh. Great delicacy was required in obtaining agreement with local people as regards the intention of the person who left the endowment. Such problems will arise in connection with educational endowments, in particular as boundaries will be changed. Someone may have left an endowment for a particular area—perhaps a small area—but after the new boundary changes all will be different.

I do not know what will happen to some of the endowment for Paisley Grammar School. We were talking about Eastwood earlier today—it seems a long time ago now—and we wondered what would happen. Under the new set-up, many endowments to Paisley Grammar School will not necessarily go to the catchment area of the old grammar school. If we are going to keep faith with the intention of those who have left the endowments the matter must be treated with great delicacy. I beg to move.

Lord Fraser of Carmyllie

The amendment would require that any scheme which is made under Clause 17, the terms of which were agreed by the new authority or authorities concerned, should also continue in effect the terms of any earlier scheme made under Section 105 of the Education (Scotland) Act 1980.

We believe that such a provision would unnecessarily restrict the Secretary of State's ability to promote schemes which best reflect the circumstances of a particular endowment in relation to the effect of local government reform. Such a restriction would, we believe, be undesirable.

Of course, on frequent occasions there will be cases where a scheme put forward by an existing authority is fully acceptable to the new authority or authorities concerned and is fair and reasonable in itself. In that situation there will be no cause for the Secretary of State to intervene and he will be able to accept it as presented.

In other cases, however—perhaps involving several authorities—the degree of agreement may be less clear-cut or the overall reasonableness of the scheme may be less evident. The Secretary of State needs freedom to consider all the relevant factors in drawing up a scheme in those cases.

I hope that it will be appreciated that given the divisions that there may be into a number of new authorities, such freedom should be given to the Secretary of State. If well-prepared schemes are put before him and the division is obvious and fair, clearly he will not wish to intervene at all. But a residual discretion would seem appropriate to guard against an unreasonable proposal that is put to him.

Lord Carmichael of Kelvingrove

Of course, I accept that there may be problems and that someone must have the ultimate responsibility for solving them. I hope that the noble and learned Lord has expressed differently the sentiments that I was trying to express. I hope that this matter will be treated with great delicacy because of the local nature of the property. We should respect the wishes of the people who have left the endowments. I hope that that message will be accepted and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 48:

After Clause 17, insert the following new clause:

("Interim committee

  1. .—(1) Subject to the provisions of this section, the Secretary of State shall establish an interim committee with the power to consider, and as it deems appropriate to approve, applications for grant aid from voluntary organisations in good standing funded by existing councils in 1995 whose funding applications to existing councils for the year 1996–97 and/or to new councils for the year 1997–98 have been refused or delayed.
  2. (2) The committee shall number not less than five and not more than seven members chosen from among people with knowledge and experience of the voluntary sector, at least two of which shall be chosen from a list drawn up by the Convention of Scottish Local Authorities and at least one of whom shall be chosen from a list drawn up by the Scottish Council for Voluntary Organisations, with a convener appointed by the Secretary of State.
  3. (3) The committee shall operate from an appropriate date in 1995 to an appropriate date in 1997 as determined by the Secretary of State.").

The noble Lord said: This amendment is based on the fact that the Scottish local authorities provide voluntary organisations with funding of around £100 million per year. With their narrow financial margins, voluntary organisations are exceptionally vulnerable to the loss of council funding or to delays in council funding decisions.

The transition to a new structure of local government will create a risk of both cuts in funding and delays in funding decisions. Those delays can be quite catastrophic. Extremely efficient organisations may be threatened and may even disappear because of cash flow problems. In the past 10 years we have seen many businesses fail because of those problems.

Local councils will probably have to absorb some of the costs of local government reform. They may view their discretionary funding of voluntary organisations as a soft option and may cut that funding. However, I should say that the councils in my area which an; looking after voluntary organisations will go a long way towards making sure that they are able to continue with their work.

Region-wide organisations funded by regional councils which are due to disappear will be particularly at risk. Of course, the scope within which regional councils are able to operate is considerably greater than may be possible in relation to the smaller councils which are to be created. Successive councils will not only have to agree in principle to continue funding but they must agree also on how to share the costs when organisations straddle the borders of the new local authorities.

The transition will also generate considerable scope for delays in budget planning and funding decisions. In 1995–96 the staff of existing councils will be uncertain about the future. The existence of shadow councils from 1995 which will have powers to withhold approval of funding decisions relating to over £100,000 revenue or £1 million capital will carry its own potential for delay. When the new councils assume authority in 1996, they will still be struggling with the managerial and financial uncertainties of transition.

The proposed addition seeks to give voluntary organisations a "last resort" funding facility in the form of an interim committee established by the Secretary of State with the power to award grant aid to voluntary organisations whose funding has been cut or delayed during the transitional period.

The proposed interim committee could operate on behalf of the Secretary of State under his various powers to grant aid to local authority organisations. To discourage local councils from offloading their funding of voluntary organisations to the interim committee, the Secretary of State may need the power to recoup the value of any grant aid from the next year's revenue grant to the council in whose area the funded voluntary organisation operates.

I believe that the arrangement as suggested in the amendment is a neat arrangement. I hope that the Minister realises the very important work voluntary organisations carry out. Of course, he may be aware that the amendment has really been sponsored, because of a great deal of worry on the part of the Scottish Council for Voluntary Organisations. I hope that the Minister will treat it with sympathy. I beg to move.

The Earl of Balfour

I am rather anxious about the proposed new clause, although I have much sympathy with the remarks made by the noble Lord, Lord Carmichael of Kelvingrove. My worry is that the committee will be almost entirely made up of persons who are connected with the voluntary sector or with voluntary organisations. In such cases, I believe that they might even be fighting among themselves. Very often it is much better to have a committee that has no direct interest—which, of course, the proposed committee is bound to have—in its own affairs. You must have independent people. That is the part of the amendment that I do not like.

The Earl of Mar and Kellie

I support the amendment, which seeks to prevent difficulties during the transition from the existing arrangements to the new councils and, in so doing, to protect the position of those voluntary sector organisations which have a definite need for local public funding, rather than relying on direct donations by the public through charitable collections. I have in mind those vulnerable voluntary organisations whose work is useful and necessary but which will never be seen as having much popular appeal.

Such organisations are those seeking to help people with problems of alcohol, drugs, domestic violence, offending behaviour, cultural discrimination, victims suffering from various diseases and those in other unpleasant situations. In many respects those organisations need to operate in a somewhat covert manner so that they can protect their client groups and gain their confidence. All such organisations, whether they be, by my definition, popular or covert, need to secure and maintain a steady flow of funding to enable them to carry out their task in the Scottish community.

I believe that the provision of an interim committee to oversee the transitional period and to act as a longstop would have merit. I recognise the fact that the new councils will have the complete right and opportunity to make their own decisions about funding once they are in place. It would be a great pity if any voluntary organisation had to close down its operation due to a temporary hiccup in funding during the transitional period.

10.30 p.m.

Lady Saltoun of Abernethy

I have great sympathy with this amendment, although I find myself in considerable agreement with the noble Earl, Lord Balfour, over the potential composition of the suggested committee. But certainly the all-party Scottish children group is very worried about funding for voluntary organisations during the transitional period because a break in funding could easily mean the total collapse of a particular organisation. The work which these organisations do in support services for, particularly, special needs children is very valuable indeed; and once it was lost it could never be replaced.

Lord Hughes

I cannot agree with the criticism which the noble Earl made when he said the committee appeared to be composed almost entirely of people from the voluntary organisations. The committee will comprise no fewer than five nor more than seven members; and of these only one is referred to in the amendment as being, chosen … by the Scottish Council for Voluntary Organisations". Two shall be chosen by the Convention of Scottish Local Authorities. They may be taken as representative of the people who at the end of the day will have to find the money. Therefore, I believe, a balance is achieved there.

The other two members, or the other four as the case may be, will be appointed by the Secretary of State for Scotland. He will appoint people who have knowledge or experience of voluntary organisations. They of course could include people who were not members of voluntary organisations but who were familiar with the type of work which they did and were familiar with the causes which experience has shown could not be financed from either national or local taxation but were dependent on moneys which these voluntary bodies could provide. I believe the noble Lady, Lady Saltoun, was supportive of the amendment but also wondered whether too much emphasis was being laid on the voluntary organisations. I hope that what I have said has allayed their fears in that regard. This committee will be a balanced body as two of its members will be selected by the spending authority and others by the Secretary of State for Scotland.

Lord Thomson of Monifieth

I have strong sympathy with the purpose that lies behind this proposed new clause. I will not comment on the composition of the text of the clause; but I would say to the Government that one of their reasons for justifying radical local government reform is that the nature of operations of local authorities has changed greatly over recent years and in many ways they enter into partnership with outside providers of services rather than doing things for themselves as they have done in the past. Of course one of the most fruitful partnerships that has grown up is between local authorities and voluntary organisations. It is, I think, vitally important to find a mechanism for the transition period that enables that partnership to continue uninterrupted and not become destabilised so that when the new structure is finally in place that kind of partnership can continue to flourish.

Lord Fraser of Carmyllie

I fully recognise the anxiety that local government re-organisation should not cause disruption to voluntary organisations. I recall that on Second Reading the noble and learned Lord, Lord Cameron of Lochbroom—who is, I believe, honorary president of the SCVO—made his worries over this matter clear. I note that the noble Lord, Lord Carmichael, said that this amendment has at least been prompted by that organisation. I should say at the outset that there is one matter on which I have some disagreement with the noble Lord and perhaps he might explain to me—not on this occasion but on some later occasion—how he gets the figure of £100 million. I certainly accept that a considerable amount of funding is provided to voluntary organisations in Scotland from local government; but my understanding is that it is less than a third of the figure that the noble Lord gave of £100 million but we might discuss that at some—

Lord Carmichael of Kelvingrove

When the Minister considers that this figure includes capital as well as revenue, it may be bigger than he thinks. However, I will try to check up on it.

Lord Fraser of Carmyllie

I should be grateful, as a matter of information, to know how that figure is arrived at.

We value very highly the important role played by the voluntary sector and volunteers within our society. We are anxious that any disruption should be minimised and that the voluntary sector should be well placed to take advantage of the increased opportunities, as the noble Lord, Lord Thomson, indicated, for partnership with local authorities by playing a greater role in the delivery of services in the new unitary authorities.

SCVO has met with my honourable friend the Minister for Local Government and Industry at the Scottish Office. SCVO suggested a number of actions which might smooth the transition for voluntary organisations. My honourable friend gave SCVO two undertakings.

First, he undertook that the Scottish Office would give guidance to the new authorities in their shadow phase on the key role of the voluntary sector and the importance of avoiding disruption and delay in decision making.

Secondly, he undertook that the Secretary of State would make a direction under Clause 56 of the Bill requiring each existing authority to inform shadow authorities of all the funding which the existing authorities presently give to voluntary organisations, whether by means of grant, service agreement or contract. That direction is designed to ensure that the new authorities are aware of the full extent and purpose of the existing authorities' funding of the voluntary sector and, in particular, of the full range of annual discretionary grants. That information will then inform their decisions on assistance to the voluntary sector.

In addition, it was pointed out that the Bill provides that all existing liabilities, obligations and contracts entered into by existing authorities are to be transferred to the new councils. That will clearly safeguard contracts with voluntary bodies.

Also discussed at that meeting with my honourable friend was the proposal currently before us in new Clause 17 that a central committee be set up on an interim basis with a power to give grant to voluntary organisations whose funding application had been refused by one of the new authorities.

I am grateful for the contributions of my noble friend Lord Balfour and the noble Lady, Lady Saltoun, and the anxieties that they expressed. We would also be anxious that such a proposal would be unworkable. It would involve the setting up of an administratively complex system which would require the obtaining of information from local authorities and others to enable a centrally appointed committee—not a local government appointed committee—to make properly informed judgments on what could be a very large number of cases. It would probably require the recouping of part of the revenue support grant from local authorities to finance the reserve grants.

More importantly, it would remove the decision making process from the local level, where I would have thought that it would be agreed on all sides of the Chamber that it rightly belongs. We would be setting up a central committee whose only role would be to substitute its decisions for those of local authorities. We do not think that proposal is either workable or wise. When I contemplate how many times the Secretary of State has prospectively been criticised for intervening unnecessarily, that would seem to me to be a power and circumstance of appointment that he would not wish to take on.

While I have to indicate that we do not accept this particular proposal and I invite the Committee to reject it, we take the concerns of the voluntary sector seriously. We understand the problems and we are giving careful consideration to a further proposal which was put to us; namely, that the total amount which is paid by local authorities to voluntary bodies by means of annual discretionary grants should in some way be protected or ring fenced. I appreciate that there are those with a background and experience in local government who are wary of any proposal to ring fence any funding in local government. It is for that reason that we wish to give careful consideration to the matter. I hope that it will be accepted that we wish to consider the matter very carefully because we recognise the concerns which have been expressed to us.

The proposal before us raises some complex administrative issues. If it were decided to go ahead with the proposal on ring fencing, the Bill contains special grant powers in Clause 165. However, I think that we would wish to reflect carefully on the points made in the debate before reaching a decision on whether to use the powers available.

I do not think that it is necessary at this stage to engage in further elaboration or discussion of the issue, but I hope that those who have a concern at SCVO, and others who have written to noble Lords, will offer their views on the matter and we shall see how we can take it forward. The issue is not without complication. However, I hope that it will be appreciated that we understand the concerns and would like to resolve the problems.

Lord Carmichael of Kelvingrove

The Minister has given us a little hope. I do not think that any of us believe that ring fencing will exist in perpetuity. After all, local authorities review contributions regularly. The councillors know from experience in their areas that organisations have done their job, or that new organisations exist. There is a continual movement. We should not be too worried about the idea of ring fencing. I should be quite happy if the Secretary of State were to agree to make good for a limited period before the handing over to the new local authorities. I do not say that it is an easy matter. Voluntary organisations may be involved in harder work: instead of going to the big authority they might need to go to many smaller organisations to obtain the same money. Nevertheless, the Minister has given us a little hope. I hope that the voluntary organisations feel that at least he is sympathetic.

I am still worried about the money aspect. The £100 million may seem a high figure. I am sure that the Minister has a fair idea. However, I shall seek to find out the figure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48A not moved.]

Clause 18 agreed to.

Schedule 3 [Residuary bodies:]

Lord Carmichael of Kelvingrove moved Amendment No. 49:

Page 132, line 30, leave out from ("and") to end of line 32 and insert (", provided that not less than one and not more than three members shall be appointed from amongst members of a council or councils within the area covered by the residuary body and nominated by them; and the members of the residuary body shall appoint one of their number to be Chairman and may appoint another to be Depute Chairman of that body.").

The noble Lord said: In moving Amendment No. 49, it may be for the convenience of the Committee if I speak also to Amendments Nos. 50 to 53.

This group of amendments is important. It is important that decisions about the future use and destination of local authority property should be informed by an understanding of the area and of the historic and the current operation of the councils within it. It is therefore important that the membership of the residuary body should include elected representatives from within the area, nominated by the relevant councils. This is an essential provision to ensure democratic accountability of the workings of the residuary bodies and to ensure that any decisions on local authority property take into account the needs of services provided by local government and not simply the maximising of the value of the assets.

With regard to Amendment No. 50, it is important for corporate bodies responsible for dealing with assets in public ownership and created under statute to be publicly accountable and to be seen to act solely in the public interest. Any suspicions in the public mind about the motivation for decisions on public assets and public funds undermines the effectiveness of the body and the general trust in the discharge of their business. There is perhaps also, of course, the future possibility of being able to build up the funds and assets that have been so helpful. To avoid such consequences many bodies, including local authorities, are obliged to maintain for public inspection registers of the interests of their members.

There is no reason why the same principles should not apply to residuary bodies which will be dealing with the future destination of assets acquired through time out of public funds. Therefore, all members of such residuary bodies should be obliged to notify any interest which they have and those should be recorded in a register which is open for public inspection. This is a minimal safeguard for the public interest and applies already to many similar bodies.

I hope that the Minister will take the parallels with the Palace of Westminster and the importance of disclosure. In the other House there is a register—not in this House where we do not expect anything, but by and large people make clear what their interests are.

On Amendment No. 51, members of residuary bodies should be subject to the same penalties for non-compliance as members of local authorities, given that they are dealing with local government assets. For example, it would be unjust if a member of the residual body, who was also a property developer, did not disclose a personal interest which he or she may have in an asset to be disposed of by the residual body. That is an obvious point, but also one which we should make sure we emphasise.

Amendment No. 52 makes it clear that local authorities should be obliged to make information about their meetings available to the public in advance and hold their meetings in front of the public and the press, except where—the usual conditions—private or confidential information is dealt with. As residuary bodies will be dealing with local authority assets and are likely to be taking decisions affecting assets which have been acquired with public funds over the years, it is right that their proceedings should be open to public scrutiny under the same rules as local authorities. This amendment therefore seeks to apply those rules as laid down in the access to information legislation to the proceedings of residuary bodies.

Finally, the purpose of Amendment No. 53 is to make it a statutory obligation of the residuary body to prepare and publish an audited statement of accounts. The accounts of a residuary body should be subject to scrutiny by an independent accounts body and the same requirements to prepare and publish audited accounts as in the case of local authorities, in accordance with the provisions of the Local Government (Scotland) Act 1973.

These are technical amendments, but I think that they are the least which should be asked of the residual bodies which will handle a large amount of valuable assets. I hope, therefore, that the Minister will be sympathetic. Although he may not like the exact wording I am sure he could find the correct form to meet the spirit of the amendments. I beg to move.

10.45 p.m.

Lord Mackie of Benshie

I shall not detain the Committee for long, I shall simply give my rough notes on this group of amendments. First, ensure local elected members have a knowledge of the area. The noble Lord, Lord Carmichael, has made that point. Secondly, check people's financial connections and punish them if they do not disclose the connections. Lastly, the same access to information should be given by the residual body as by local authorities, and accounts should be kept and audited.

This appears to me to be a good summary of the need for the five amendments. I hope and trust that the Minister will give us a sympathetic answer because they appear to be very practical indeed.

Lord Fraser of Carmyllie

I can fully appreciate the concerns which have motivated this group of amendments. If a residuary body is appointed then every local authority in the area in which it will operate will have an interest in its actions.

That said, I am not wholly convinced that the approach proposed in the amendment is a sensible way of proceeding—particularly, at this point, in Amendment No. 49. Leaving aside the possibility that it leaves open the scenario of a residuary body comprised entirely of local authority members —in which case why have such a body in the first place? —I think that there are real dangers in a selective approach which would allow representatives of some authorities in the body's area to be members of that body while others were not represented.

While I would do nothing to cast any doubt upon the integrity of any local authority member, I think that such an arrangement could give rise to dissatisfaction among the authorities directly affected by the actions of a residuary body.

Those authorities which did not have a representative directly on the body could feel that their interests might be adversely affected in comparison with other authorities that were represented. That would not be helpful in a situation where the residuary body's principal function was to ensure the fair and equitable distribution of assets.

Nevertheless, I fully agree with the sentiment expressed by the noble Lord that the residuary body should have a good knowledge of the local authorities with which it is working. I am therefore happy to give the Committee the assurance that in appointing members of any residuary body the Government will give careful consideration to the need to have good links with the councils concerned.

We envisage the appointment of a residuary body as being very much something that will be done with the agreement of the local authorities in a particular area, as a response to their view that such a body would facilitate the restructuring process in that area.

I wish to stress that any such body would not be set up in opposition to local government, or indeed as an alternative to it, but as a facilitator. The provisions of Schedule 3 should be seen in that light.

Turning to Amendments Nos. 50 and 51, I have listened to the arguments advanced by the noble Lord. I agree that their aim is laudable: to ensure financial propriety in appointments to a residuary body. I do not think that there would be any Members of this Chamber who would disagree that it would be wholly inappropriate for any member of a residuary body to have any financial or other interest which he or she did not declare and which might affect that person's performance.

In practice, however, I do not think that these particular provisions are required. Paragraphs 4,5 and 9 of Schedule 3 are tried and tested provisions. Similar provisions can be found in the Enterprise and New Towns (Scotland) Act 1990 and in the Natural Heritage (Scotland) Act 1991, and they establish a standard code of conduct relating to appointments to non-departmental public bodies in Scotland.

Turning briefly to Amendments Nos. 52 and 53, again I have listened to what the noble Lord said. What is common to the amendments is an attempt to apply similar disciplines to local authorities and to residuary bodies. Indeed, that imposition of a discipline is the very purpose of Clause 18(2) of the Bill. This allows any existing local government legislation to be applied with or without modifications to residuary bodies. So, while I have great sympathy for what the noble Lord has put forward in terms of his amendments, my rejection of them is not on the basis that they are unworthy but simply that they are unnecessary. On that basis, I invite him to withdraw them.

Lord Carmichael of Kelvingrove

The Minister certainly gave us a fair amount of hope in what he said. We always know that the wording that we put forward is never satisfactory to the Minister and to the department.

The real point that we are trying to make is that nothing should be done that would weaken public trust in a residuary body or an elected council. With the assurances that the Minister has given me, and in the hope that we shall get the right wording at some point —or that the Bill covers it already, which he seemed in large measure to suggest—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 to 53 not moved.]

Schedule 3 agreed to.

Clause 19 agreed to.

Clause 20 [Joint committees and joint boards]:

The Deputy Chairman (Baroness Cox)

I should point out that if Amendment No. 54 is agreed to, I cannot call Amendment No. 55.

Lord Ewing of Kirkford moved Amendment No. 54:

Page 17, line 8, leave out from beginning to end of line 15 and insert: ("(c) it appears to those authorities that incorporation of that joint committee (or proposed joint committee) as a joint board would provide for the more effective discharge of its function, the authorities may resolve to establish such a joint board.").

The noble Lord said: This series of amendments has four main themes running through it, with which I shall deal quite briefly. That is not to diminish the importance of the issues that we are discussing.

The first main theme running through these amendments is to take away from the Secretary of State one of the powers that Clause 20 of the Bill gives him - to establish or convert joint committees into joint boards. Amendment No. 54 makes it absolutely clear that the joint board should only be established at the request of the local authority and that the Secretary of State would then either give or withhold his consent. It should not be for the Secretary of State to convert a joint committee to a joint board. I should add that if the Secretary of State retains those powers, there is a serious danger that through the creation of compulsory joint boards the Secretary of State could, in effect, reorganise local government yet again by instructing joint boards to be created and passing the responsibility from either a politically controlled council or a non-politically controlled council to a council of a different political complexion.

The second theme is the whole question of the local authority asking the Secretary of State's permission to convert a joint committee to a joint board, the Secretary of Stage giving his permission and ipso facto agreeing to the establishment of a joint board. Our amendment suggests that the Secretary of State should not then retain the power to dissolve the joint board, having given his agreement to the establishment of the joint board in the first place.

The third theme is the requirement on a unitary authority to publish in a national newspaper its joint arrangements. The example I draw out is that the people of Clackmannan would be entitled to know whether the social work services were being provided not by Clackmannan council but by Fife council. The whole reason for the Government's reorganisation is that the local authorities were getting out of touch with their electors. In order to keep them in touch, in our view it is necessary to ensure that people who live in that local authority know from where their services are being provided, especially in the joint arrangements.

The fourth and final theme is that of the requisitions demanded by the joint boards. We argue in our amendments that those requisitions should be disregard-ed for capping purposes because the councils will have no control over the requisitions levied by the joint boards. Therefore, it seems to us to be inequitable to have those included for capping purposes. On that basis, I beg to move the amendment.

11 p.m.

Lord Fraser of Carmyllie

I appreciate that the concise fashion in which the noble Lord has dealt with this matter does not understate his concern that this particular issue should be examined carefully. Clearly, not only in this Chamber but in another place and generally in Scotland, this is a matter that has caused some concern.

Before I consider the amendments in detail, I should like to make it clear that the Government see this clause as increasing the options available to local authorities in deciding the best methods of service delivery. The concept of setting up joint boards using secondary legislation is new, but it was supported by the vast majority of those responding to the Government's consultation paper on internal management. It offers local authorities the opportunity to set up stable and binding arrangements with each other should they wish to do so.

Turning to the individual amendments, I believe that Amendments Nos. 54 and 56 reflect a misunderstanding of what the clause intends rather than a difference of intention. The main difference between a joint committee and a joint board is that the latter is much more difficult to leave than the former.

This is important for local authorities since it offers members of a joint board an assurance of stability: they know that one awkward member could not simply walk away from an arrangement. To do so it would need the Secretary of State to lay a new order under the provisions of the new Section 62C being inserted in the 1973 Act. Amendment No. 54 would take away that safeguard and leave a joint board no better than a joint committee. As such, I do not think it would be supported by local authorities.

Turning to Amendment No. 56, which seeks to ensure that the membership of any joint board is confined to members of the relevant authorities, the Committee may wish to note that Section 235 of the Local Government (Scotland) Act 1973 already defines a joint board as, consisting exclusively of persons appointed by the local authorities". There is therefore no question of anyone such as the Secretary of State having a say in who is appointed to a joint board. The reference to the new Section 62A(2) relates purely to such things as the total number of members, which has in any case to be agreed by the councils concerned.

Moving on to Amendment No. 55, a similar amendment was of course considered in another place. At that time my honourable friend the Minister for Local Government pointed out a number of aspects that did not appear to have been considered. From what has been said today, further thinking has clearly taken place on this provision and the Government have some sympathy with the thrust of the amendment. Accordingly, I can indicate to the noble Lord that I can take this amendment away to consider whether an appropriate amendment can be brought forward by the Government at a later stage.

Amendments Nos. 57 and 58 effectively delete the Secretary of State's power to insist on a joint board should councils patently fail to provide a satisfactory service. I should make it quite clear—and I hope it will be understood—that this power will not be used lightly. Indeed, the Secretary of State and his ministerial colleagues would hope that they will never have to use it. It is essentially a reserve power of last resort. However, should it be needed, it would be subject to full parliamentary scrutiny, with the affirmative resolution procedure required.

Turning to Amendment No. 59,I agree that this also has some merits. However, it has one major disadvantage which in the Government's view rules it out. Effectively the amendment would mean that an individual council could block indefinitely the abolition of a joint board on which all the other members were agreed. That would seem to us to be unfortunate. I can assure the Committee that the Secretary of State would not intend to use the power to dissolve a joint board against the wishes of all its members, except in the type of circumstance I outlined.

Finally, turning to Amendment No. 60, it was argued that the levy demanded by a joint board could lead to a council breaching its capping limit. I would hope that in practice councils would be more sensible than to allow that to happen. It certainly does not occur at present. The members of existing police and fire boards come to mutually acceptable arrangements for the funding of these bodies. There is no reason why similar arrangements should not be negotiated in future.

I invite the Committee to resist Amendments Nos. 54, 56, 57, 58, 59 and 60. But, as I indicated to the noble Lord, I accept the principle of Amendment No. 55 and am happy to take it away for further consideration.

Lord Ewing of Kirkford

The great secret in politics is to quit when one is ahead and even when nothing is ahead for me. I beg leave therefore to withdraw Amendment No. 54.

Amendment, by leave, withdrawn.

[Amendments No. 55 to 60 not moved.]

Clause 20 agreed to.

Clauses 21 and 22 agreed to.

Clause 23 [Duty to prepare decentralisation schemes]:

Lady Saltounof Abernethy moved Amendment No. 61:

Page 20, line 31, after ("councils") insert ("or, when no Community Council exists, other organisations representing broad community interests").

The noble Lady said: I beg to move Amendment No. 61 standing in my name and in the name of the noble Baroness, Lady Carnegy of Lour, who has hurt her leg and is obliged to rest it. She is very sorry indeed that she is unable to be present to introduce the amendment herself.

The noble Baroness put down the amendment after consultation with the Scottish Community Education Council, of which she is an Honorary Fellow and past chairman. Clause 23 requires each new authority to draw up a draft decentralisation scheme and to make it available for public inspection and comment before it is finalised. Subsection (4) requires, in addition, that the local authority consults the community councils in its area about the draft scheme. That is only proper since they are the bodies best placed to reflect broad local opinion as to the convenience and user-friendliness of the proposals.

The weakness is that many urban and rural areas are not covered by community councils. Recent research by Strathclyde University suggests that at present this amounts to a quarter of Scotland, with a particularly uneven spread in urban areas. Even allowing for any new community council schemes which local authorities may set up under Clause 22 of the Bill, coverage is still likely to be far from universal. This amendment would ensure that, where community councils do not exist, communities would be consulted by way of some other organisation in a position to reflect broad public opinion.

Bodies which could be consulted vary widely. In some urban areas and housing estates, organisations exist which are representative of a particular neighbourhood; for example, the Drumchapel Community Organisation Group, which, interestingly, has turn-outs at its elections greater than those of the district council. The Government recognise other representative community bodies in their urban regeneration programme, examples being the Wester Hailes Representative Council and the Castlemilk Umbrella Group. Elsewhere a council for voluntary service might be suitable, or in rural areas a village hall committee; and so on.

The wording of the amendment is probably not perfect, but we hope that at this stage your Lordships and the Government will accept that a widening of the provision in subsection (4) is necessary. The success of the new councils will be heavily dependent on sensible decentralised ways of working and on the public being aware from the outset that they are being listened to and considered. That, after all, is what the Citizen's Charter is all about.

LordFraser of Carmyllie

I am grateful to the noble Lady for moving the amendment. I know that the noble Baroness, Lady Carnegy, takes a particular interest in this matter and it is very regrettable that she is unable to participate at this time in the Committee stage of the Bill.

We have a great deal of sympathy with the objective behind the amendment. It seeks to ensure community participation in the formulation of decentralisation schemes and that is, of course, eminently to be desired. The difficulty with the amendment relates to the imprecise nature of the term, other organisations representing broad community interests". That contrasts with the community councils referred to in the Bill, which are statutory bodies. In practice it would be very difficult for authorities to identify all such organisations falling within that broad definition.

I believe, however, that there is in practice very little between the position as currently set out in the Bill and that proposed by the amendment. Clause 23 provides for the new councils to publish their decentralisation schemes in draft form and to consider any representations about their proposals. There is ample scope, therefore, for all community organisations to have their say in respect of all areas—not just those where community councils are not in existence.

We have already seen in Highland an excellent example of community involvement. Although it will ultimately be for the new councils themselves to determine the nature and scope of decentralisation for their areas, Highland Regional Council has produced a consultation document on decentralisation with a view to exactly what the noble Lady would wish—that is, stimulating debate on this very important issue. Several thousand copies of the council's consultation document were distributed to community councils, public bodies, voluntary organisations and the general public. The council's document has been the subject of much media interest and has been considered at a number of meetings across the Highlands.

Noble Lords may also wish to be aware that a recent study carried out by the Community Councils' Resource Centre in Glasgow showed that each of Scotland's district and islands councils had established community council schemes. Out of a possible 1,346 community councils, 1,119—that is 83 per cent.—were active. That is a substantial figure and I hope that the numbers of active community councils will continue to grow. That is, however, a matter for communities themselves.

To sum up, I believe that the provisions as currently set out in the Bill, coupled with a responsible and positive approach to decentralisation by the new councils—there is no reason to believe that they will adopt anything other than such a positive and responsible attitude - could provide a framework within which there can be maximum participation by local communities, not just community councils. In view of what I have said, I hope that the noble Lady will be reassured and feel able to withdraw her amendment.

Lady Saltoun of Abernethy

I am grateful to the noble and learned Lord for his full reply. I hope and trust that this will work out as he anticipates. My personal reservation is that, unless there is some onus on a local authority to consult some specific body, the kind of consultation that the Minister envisages (through advertisements etc.) will fail by reason of public apathy - exactly that same apathy as leads to so few people coming out to vote in local authority elections. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

11.15 p.m.

Clause 24 [Transitional provisions: finance]:

Lord Carmichael of Kelvingrove moved Amendment No. 62:

Page 21, line 11, leave out from beginning to end of line 34 and insert:

(""Transitional provisions.

Section 94(2) above shall not apply in respect of financial year 1996/97." ").

The noble Lord said: In moving this amendment, it may be convenient if I also discuss Amendment No. 63. These are important amendments. I hope that the Minister will realise that they are transitional and that we are not trying to do something by the back door. As the Minister knows, Section 94(2) of the Local Government Finance Act 1992 provides the legislation on which the Secretary of State's council tax-capping powers are based. Under those powers, he can seek a reduction in an authority's council tax level if he considers that its expenditure is excessive or that its increase in expenditure is excessive. In the normal course of events, the basic expenditure is measured by comparing the authority's budget for the relevant year with its grant-aided expenditure for that year. The increase in expenditure is measured by comparing the authority's budget for the relevant year with its budget for the preceding year.

In considering the new authority's budget for 1996–97, no directly comparable preceding year's budget will be available against which to measure the increase. Any attempt to create a comparable budget for that purpose would be inappropriate and would inevitably incorporate subjective and questionable assumptions. If the amendment is not accepted, the Secretary of State will be given the power to create a figure which will be used as the basis for comparing the new authority's expenditure in the first year.

To create a figure which truly reflects what the budget of the new authorities would have been in 1995–96 will be impossible. It will not merely require most regional and some district budgets to be disaggregated—that would be an extremely difficult and complicated task—it would also require account to be taken of the varying economics and/or diseconomics of scale which apply in each region.

The possibility of applying any consistent basis of year-on-year comparisons would also be affected by the inclusion of transitional costs, and, in particular, by the fact that residuary bodies may be set up in some areas while in others the wind-up will be carried out by the new authorities. The figure decided by the Secretary of State will, however, be crucial to the new authorities, depending upon the capping rules applied. It would effectively set budget limits for the new authorities for many years ahead.

Amendment No. 63 is designed to provide for the full costs of the shadow authorities to be met by the Government outwith the local government settlement, and to ensure that no additional costs fall on council tax payers. The Secretary of State's public expenditure plans, announced in December and confirmed in Committee by the Minister for Local Government, contains provisions outwith the local government settlement of £23 million in 1995–96 to cover the estimated costs of the new authorities during the shadow period. It is presumably from that provision that the Secretary of State will make the grants identified in the clause.

The Minister will know that the CoSLA report, Local Government in Scotland: A critical evaluation of costs, states that the cost of preparing for change could be as much as –75 million, although it makes it clear that some of those costs will be met by the old authorities prior to the shadow authorities being formed. Borrowing consent will allow the shadow authorities to spend beyond the level of grant received, but the overspend will require to be funded by increased council tax bills in 1996–97.

During consideration of a similar amendment in another place the Minister, Mr. Stewart, rejected the amendment as giving the shadow authorities a licence to print money. But that is not the case, given that shadow authorities will not be involved in the delivery of services; rather they will be concerned with establishing themselves and planning for the future. However, given that the Secretary of State has at present allocated only £23 million to cover the costs of establishing the new authorities, while it is suggested that the actual cost will be much higher it is wrong that the additional costs will be borne by the council tax payer.

Therefore, the amendment seeks to ensure that the Government finance the full transitional costs required to create a local authority structure upon which they have insisted. It was the Government who wanted it, not the local authorities. The amendment provides also the opportunity to air more fully than was possible at an earlier stage the whole question of how accurate or otherwise is the Government's overall estimate for re-organising local government in Scotland.

In that context, the transitional and the ongoing cost estimates provided to date by the Government have been questioned, and severe doubts have been expressed in many quarters as to their validity. With that in mind, it is not just essential to ensure that as the re-organisation proceeds sufficient new money is made available to fund the expenditure of the shadow authorities; there requires to be confidence in, and confirmation of, the overall level of expenditure which will be incurred. That is particularly so given that the Secretary of State has confirmed that the financial implications of the re-organisation will fall to be met wholly within his Scottish block allocation. It follows, therefore, that in the unlikely event that the Secretary of State's estimates are correct—we are always suspicious of them—to the extent to which the transitional costs are not all met from ongoing savings, they will require to be funded at the expense of other essential public services in Scotland.

However, if as is widely considered likely the transitional costs turn out to be higher and/or the expected ongoing savings do not materialise, the impact on those essential services and on council tax levels could be significant and crippling. These various issues can be given a wider airing.

We have a sheaf of notes that the Minister may want to peruse, although I am sure not at this time of night. We have plenty of available and well-documented evidence to show that this is a real danger. We hope that the Minister will look at the points that have been made and give them serious consideration. I beg to move.

Lord Mackie of Benshie

I wish to comment on Amendment No. 63. The Secretary of State is to provide money that he considers appropriate, which appears to me to be a little too narrow. Having paid £55,000 for a Touche Ross report, it gave figures which varied widely. The whole transitional period must be fraught with difficulty and be very difficult to estimate.

We have experience of the 1973 reforms when, I understand, the costs were vastly greater than estimated. In this case, it is reasonable to say that the money will be provided to meet the costs. I noted what was said by the Minister of State about it being a licence to print money. However, during the transitional period the transitional bodies have no reason to throw money about and the Secretary of State can still have a great deal of control. Considering the inaccuracy of the forecasts which have been made and the experience of the past, the amendment is sensible.

Lord Hughes

I suppose that when the Secretary of State decides to make available such money as he considers appropriate, he will be taking account of what money has been spent. If it appears to him that the authority cannot be accused of having thrown money about needlessly it is unlikely to suffer in the result.

Lord Fraser of Carmyllie

The purpose of Amendment No. 62 is to prevent my right honourable friend from using his capping powers against the planned new councils in 1996–97. We regard it as essential that capping arrangements should apply to the new councils in their first year of operation. It will come as no surprise to the noble Lord if I say that we are unable to accept the amendment.

Clause 24 makes special transitional arrangements relating to the year 1996–97 to enable the Secretary of State to propose a reduction in the level of council tax set by a local authority; in other words, to cap it if necessary.

Section 94 of, and Schedule 7 to, the Local Government Finance Act 1992 enable my right honourable friend to take capping action against an authority where he considers that the planned expenditure of that authority for the year ahead is excessive, in absolute terms, or where there has been an excessive increase in its planned level of expenditure as compared with the previous year.

Without special transitional arrangements provided for in Clause 24, it would not be possible for my right honourable friend to use the second leg of his capping powers—namely, the power to cap an authority where he considers that the year-on-year increase in its level of planned expenditure is excessive. This clause, therefore, gives him the power, after consultation with CoSLA, to specify a notional budget for each new authority for 1995–96 against which the actual budget for 1996–97 can be compared in order to determine whether there has been, in the Secretary of State's opinion, an excessive year-on-year increase in any authority's level of planned expenditure.

As many noble Lords will no doubt recall, the last reorganisation of local government in Scotland in 1975 saw a distinct surge in local authority expenditure. The powers available to the Secretary of State in Clause 24 would prevent any repetition of this on this occasion, and they are vital therefore in order to protect local taxpayers from any of the new authorities indulging in excessive expenditure in their first year.

Clause 25 at present provides that the new local authorities will be funded during their shadow period —that is, from the date of the first elections in April 1995 to 1st April 1996 when the new authorities will become operational—either by grants provided by the Secretary of State or by borrowing subject to the consent of the Secretary of State. I wish to make it clear that the Secretary of State has not yet reached a decision on which of these funding methods should apply or, indeed, whether it would be sensible to have a combination of the two options.

The effect of Amendment No. 63 would be to oblige the Secretary of State, if he decided to grant-aid the shadow councils, to pay not such grant amounts as he considers appropriate but whatever amount the shadow councils actually decide to spend. In other words, acceptance of this amendment would effectively mean that the Secretary of State was signing a blank cheque as regards the payment of grant to the shadow councils. Patently the Government could not countenance that.

The clause as it stands enables my right honourable friend to exercise an appropriate measure of control over the shadow authorities' expenditure, and that is entirely in keeping with his responsibilities. I can assure noble Lords that my right honourable friend recognises fully the need for the new councils to incur expenditure during their shadow period. He made provision for estimated expenditure of £23 million in his 1993 public expenditure plans, and he has made it clear that he will consider sympathetically requests for either grant or borrowing consent in order to fund that expenditure.

In the light of that explanation, I hope that the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove

I am sure that the Minister did not believe for a moment that I thought that he would accept the amendment. The new authorities will need some guidelines on which to work. I hope that the Secretary of State will at least be able to make life rather easier for those new authorities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Financing of new authorities prior to 1st April 1996):

[Amendment No. 63 not moved.]

Clause 25 agreed to.

Clause 26 agreed to.

Clause 27 [Valuation areas and authorities and appointment of assessors etc.]:

[Amendment No. 64 not moved.]

Clause 27 agreed to.

Clauses 28 to 30 agreed to.

Clause 31 [Education]:

Lady Saltoun of Abernethy moved Amendment No. 65:

Page 26, line 31, leave out ("three") and insert ("four").

The noble Lady said: I am not very happy that Amendments Nos. 65, 66 and 67 are grouped with the other amendments because they have very little to do with them. I hope that the Committee will agree to take those three amendments separately.

I must also say that these amendments and many of the others which I shall be moving at a later stage, except the ones concerning the transitional arrange-ments, would not be necessary if we could be certain of having comprehensive legislation for children in Scotland during the next Session of Parliament. It is because we are not that the amendments are so important.

The three amendments seek to ensure that all education committees will contain at least one member with expertise in the requirements of children with special educational needs. Of course, it will still be the case that each new council will have a duty to provide for children with special educational needs, but there can be wide divergencies in how well that duty is carried out.

There are a number of particular reasons why it is important that education committees should have adequate expert advice in special educational needs. Before needs can be met they must be properly assessed. That is a complex process which should draw on many professional sources, as well as fully involving the child and the family. There must be expertise at a senior level to ensure that each council has both the staff and the system to carry out assessments. Those assessments are vital, not just for individual children but also so that there can be proper planning for the future, especially for educational needs which are not currently being met.

With so many more councils it could be more difficult to plan services for children with specialised needs who are relatively thinly spread across Scotland. We hope that there will be co-operation between councils for those children, but that would be greatly helped by having experts on each education committee. Obviously the amendments would help to ensure that sufficient importance is attached to special education.

When allocating scarce resources there may be a temptation to focus on the needs of mainstream pupils at the expense of the smaller group of children with special needs. Some groups of children, such as those with emotional and behavioural difficulties, may not be particularly popular with other parents or with councils. In particular, provision should be made as local as possible. Smaller councils may find it easier to buy in places at special schools and to provide local, integrated support services which are increasingly what parents would prefer. I beg to move.

11.30 p.m.

The Earl of Balfour

I very much sympathise with what the noble Lady, Lady Saltoun, is proposing. However, what concerns me is the fact that the clause talks about an education committee. I feel that the noble Lady is suggesting that we should have a probably very highly qualified person dealing with children who have special educational needs. The other "persons" who are to be appointed to the committee under the clause are, one representative of the Church of Scotland"— that is fair enough— one representative of the Roman Catholic Church", and paragraph (c) sets out further particulars as regards one or two further persons. However, in my rather limited knowledge of education they do not seem to me to represent the kind of person whom the noble Lady wishes to introduce. I say that because I believe that she would like a very special person to be included on the committee. I wonder whether we shall be able to find such a person to sit on the education committee. Perhaps such a very special person should be on the education staff, or even available to the staff, where he or she is really needed. I fully sympathise with the noble Lady's proposal, but I am not sure that the amendment is the right way to do it.

Lord Ewing of Kirkford

I am not sure whether it would be appropriate at this stage to speak to the amendments in this group—Amendments Nos. 67A, 68, 70B, 162 and 163. I fully understand and support the noble Lady, Lady Saltoun, in her submission that in many ways her arguments are completely different from the arguments contained in these amendments. Briefly I shall just explain these amendments.

Amendment No. 67A suggests that, two teachers employed in educational establishments under the management of the authority", should be nominated to serve on the committee and be, nominated in such a manner as may be determined by the authority". It may well be that the authority will ask the professional associations representing the teachers to nominate two of their members to serve on the committee. I need go no further on that.

Amendment No. 68 concerns the number of members on an education committee. This amendment merely fills out the detail that the Government have in their own clause. It puts some meat and some flesh on the bones of the Government's clause. I really do not see that there can be any objection to the Minister accepting that amendment.

Amendment No. 70B concerns a much wider matter and deals with the director of education. Perhaps even at this late hour it provides the Minister with an early opportunity to indicate the Government's thinking in relation to the director of education. Amendments Nos. 162 and 163 are merely consequential and follow from the other amendments to which I have just spoken.

The Earl of Balfour

I hope I may return to this amendment. I thought the two groups of amendments were being taken separately. As regards the amendments on which the noble Lord, Lord Ewing, has just spoken, I would like to point out that the words of the proposed subsection (7) in Amendment No. 68 are almost identical to subsection (5) of Section 57 of the Local Government (Scotland) Act 1973, which deals with the appointment of committees. The provision in the Act covers all committees: the provision in the amendment would cover only education committees. Section 57 deals generally with the appointment of committees and follows on from Section 56 which deals with the arrangements for the discharge of functions by local authorities. From that point of view I feel that certainly the middle part of Amendment No. 68 is not required. I am not an expert on education and I am not quite certain how Schedule 10 to that Act would apply in this particular case.

Lord Fraser of Carmyllie

In view of the request by the noble Lady that we deal with certain amendments —I think she was moving Amendments Nos. 65 to 67 separately—I have my response slightly confused. I hope I will be forgiven if I do not put it together as coherently as I would like. I will certainly be prepared to respond again if I have omitted anything in error. I recognise, though, that the noble Lady is concerned about the effect that local government reform may have on the provision for special educational needs, and that she has put forward these amendments to ensure, as she sees it, that this sector of education is represented on any committee that may be set up to deal with education. I hope that she will accept that we are wholly in agreement that the education of children with learning difficulties should not in any way be compromised. However, I am convinced that the changes which the Bill proposes will not have that effect.

The purpose of Clause 31 is to give the new authorities maximum flexibility in their internal organisation. It will in future be a matter for an authority's discretion whether to appoint a committee to deal with education and, should it do so, to decide what expertise members of such a committee should have. Only one half of the members of that committee need be members of the authority. There is, therefore, ample opportunity, should that authority so wish, either to appoint one of its own members with expertise in special needs or to co-opt someone else who has such expertise.

We believe that education authorities must be given discretion to establish structures which best suit their local needs and interests. As I have said on previous occasions, to involve any degree of prescription in that way would cut against the grain of our general intention.

Amendment No. 67A seeks to reinstate a requirement for educational committees to include teacher representatives. The arguments here are again similar to those I have just explained. We wish to give the authorities maximum reasonable discretion in decisions on their own internal management. That is why we have limited the requirements on membership of committees of education to require only that, as at present, such committees should include three Church representatives. The Churches have taken part in this way for many years and the consultation that we carried out on internal management last year did not show a strong desire to change this.

No other group of staff has the right to sit on committees. The present requirement to appoint teachers is not consistent with our policy of trusting authorities to organise themselves according to their needs. However, I stress that the new authorities will still have the power to appoint teachers to committees if they so wish.

Without wishing to be unpleasant, perhaps I may point out that the amendment is technically defective.

The group of amendments to which the noble Lady took some exception—and I understand why she did so —also contains a more general set of propositions. It may be helpful if I explain briefly why we decided that new councils should have a discretion in this particular area. They were not simply dreamt up. Our proposals emerged from a working group which included representatives of CoSLA, the Local Authority Accounts Commission in Scotland and the Commissioner for Local Administration in Scotland. That group concluded that the statutory requirement for an education committee would unnecessarily restrict authorities which should have the flexibility to establish committee and management structures that best reflected local needs and circumstances.

We consulted extensively on these proposals: 51 per cent. of those who commented favoured repeal of the statutory requirement for a committee; 52 per cent. were against the post of director of education being retained.

Be that as it may, these proposals do not in any sense, and are not intended, to devalue the importance of the education service. Nor do they reduce in any way local authorities' statutory duties in relation to education.

I turn now to the substance of the other amendments. I wish to resist Amendment No. 68. It seeks to add three subsections to the new Section 124 of the Local Government (Scotland) Act 1973. The first two are unnecessary as they duplicate existing statutory provisions. The third is defective as it refers to Schedule 10 to the 1973 Act, which is to be repealed in terms of Schedule 14.

Amendment No. 162 will also be resisted. It reintroduces a definition of the term "education committee" which would be required only if Amendment No. 68 were accepted.

Amendment No. 163 is a very important amendment, and I have no doubt that Members of the Committee have received a volume of carefully developed representation from some very serious individuals involved in education in Scotland. The amendment would seek to reintroduce a requirement to appoint directors of education. As I have explained previously, our position is that that should be for each authority to decide. Perhaps I may also say that the amendment is technically deficient.

What we regard as important is that, even if we were not repealing the statutory requirement, Amendment No. 70B would be both undesirable and unnecessary because it would achieve no more than is already possible under the present statutory arrangements. For example, Amendment No. 70B proposes that directors should be suitably qualified and experienced, but without explaining what qualifications or experience would be suitable. Education today encompasses a broad spectrum from pre-fives to 16 to 18 year-olds and from special educational needs to community education. Its very width argues against a specific qualification, and even the Association of Directors of Education in Scotland—I met it recently—did not argue in favour of that.

As regards the responsibilities of directors of education, these already extend to services other than education. For example, the director for Orkney has responsibility for leisure and recreation; and the director for Dumfries and Galloway has responsibility for library services.

The proposal that directors should have the length of their contracts determined when they are appointed is also unnecessary because authorities may already do this.

I emphasise again that the thrust of our reforms is to increase flexibility and local accountability. I do not believe that our proposals are intended to put the education service at risk, and I would be concerned that anyone should think so. They are designed to strengthen local government by giving local councils a discretion to take the decisions according to the needs as they see them. It is on that basis that we would resist the amendments, not because we undervalue the importance of those who participate in education in Scotland.

11.45 p.m.

Lord Thomson of Monifieth

Before we return to these matters after the parliamentary Recess, I hope that the Minister may be ready to give at least some further consideration to the continuation of the statutory post of director of education. I do not wish to take up time at this stage. However, education is a very vital and important part of the whole Scottish tradition. The post of director of education is deep in that Scottish educational tradition. It is a distinguished post which carries great weight in Scottish life. To consider abolishing the statutory requirement to have a director of education on the basis of some poll is a very serious step to take. I listened carefully to the Minister; he seemed to say that he had a 52 per cent. poll in his favour.

I do not wish to press the matter further at this stage. But I think that to make optional the statutory position of the director of education in Scotland, so proud of our education tradition—I believe that that position is being preserved in both England and Wales—seems a very grave step indeed.

Lord Fraser of Carmyllie

I recall that the noble Lord, Lord Ewing, invited me to give a statement on how we saw things at this time, rather than to reach a definite conclusion on the issue. I do not place particular emphasis on the 51 per cent. and 52 per cent. figures that I gave.

I place some emphasis on this. I hope that the noble Lord will read what I say. There was wide consultation on this matter, and that was the conclusion that was reached. Again, I can only conclude by emphasising this. It is not to underestimate the value of directors: of education. I would anticipate that a vast number of local authorities in Scotland, if not all, will appoint directors of education. It is to give them the flexibility to determine their own arrangements that we resist the amendments. It is not because we do not believe in the traditional importance attached to education in Scotland.

Lord Hughes

As the noble and learned Lord indicated, the only restriction being placed on education authorities is that not less than half the members must be elected representatives and they must appoint three or, in the case of the Orkneys, four representatives of religious bodies. I believe I am right in thinking that all or most of the other amendments put forward can be put into effect by an education authority at its own decision.

Lord Fraser of Carmyllie

If I have understood exactly what the noble Lord said, my answer is shortly, yes. There is a limited requirement on who must be on such a body. The very discretion that we propose they should have I hope would allow those local authorities to cover just the kind of anxieties that the noble Lady, Lady Saltoun, indicated in opening the debate on this group of amendments.

Lord Ewing of Kirkford

I think it is appropriate that the noble Lady should have the last word on these amendments. I rise simply to indicate to the Minister that I give notice that we will want to return to this at Report stage. It is a very important issue and the Minister has called in aid a poll that was taken. As I understand it, that poll was from within the professions but the problem has been created for us—not by us—by the approach taken in the original response to the White Paper by the chief executives of local authorities. That is what is behind the problem. The System Three poll was also commissioned by Strathclyde Regional Council and in it a substantial majority of the other element in this argument, the important element of parents, expressed the opinion that directors of education should continue to be a statutory requirement. Having said that, I give notice that we will want to return to this at Report stage.

Lady Saltoun of Abernethy

After 14 years in this House, it comes as no surprise to me that my amendment is defective. I think that I have only once had an amendment accepted lock, stock and barrel and not been told it was defective in all that time.

I am not suggesting that small councils cannot provide good services, because some of the current smaller councils have a strong commitment to high quality special education services and the integration of disabled children. However, they admit that such an option is expensive and requires a strong political commitment. We need a mechanism to encourage the same degree of commitment, and that is one of the things that the amendment was designed to provide.

I was interested in the contribution of the noble Earl, Lord Balfour, which seemed valid to me. Meantime, I would like to read what the noble and learned Lord and other noble Lords have said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 66 to 68 not moved.]

Clause 31 agreed to.

Lady Saltoun of Abernethy moved Amendment No. 69:

Before Clause 32, insert the following new clause:

("Further provision relating to special education

..After section 22D of the Education (Scotland) Act 1980 there shall be inserted—

Further provision relating to special education.

22E.—(1) An education authority shall submit to the Secretary of State for his consent any proposal of theirs to which this section applies and shall not implement such a proposal without his consent.

(2) A proposal to which this section applies is one to—

  1. (a) discontinue a special school or a pan of it;
  2. (b) amalgamate a special school or a part of it;
  3. (c) change the site of a special school; or
  4. (d) discontinue a service provided primarily to meet the needs of children with special educational needs;
where the number of children attending the school or, as the case may be, using the service, who reside in an area other than the area of the local authority is greater than 30 per cent. of the total number of children attending the school or using the service."").

The noble Lady said: I wish to speak to Amendments Nos. 69 and 70. The new clause in Amendment No. 69 would ensure that a school or service for children with special educational needs which is used by significant numbers of children from outwith its council area cannot be closed by the council without the consent of the Secretary of State.

At the Second Reading of this Bill, the noble and learned Lord, Lord Fraser of Carmyllie, gave a welcome reassurance that, following reorganisation, children with special needs could continue to attend the same school as before. However, that reassurance will apply only if that school continues to exist.

There is a very real possibility that specialised services will be at risk, particularly in the inevitable disruption of the first few years following reorganisation. Some authorities will inherit special schools with a large number of children from other areas. They will be paid by the other councils for those children but they may still feel that the buildings, facilities and expert staff should be used for their own children. They will have no guarantee that the other councils will continue to send children to the school. They will not hold the records of needs for all the potential future students, so planning will be uncertain.

For all those reasons a small council may decide that it cannot sustain what is a resource for a much larger area. Even a large council such as Glasgow may not be prepared to continue to run a disproportionate number of the special schools in the Strathclyde area.

There is a consultation procedure before a school can be closed, but parents of children from outside a council's area have no votes and therefore have relatively little effective clout. As the law stands, a school which is more than 80 per cent. full cannot be closed without the consent of the Secretary of State. The amendment simply extends that provision to a wider group of special schools and facilities.

The 80 per cent. rule on its own is not adequate protection. Special schools may be very small and two children leaving could take a school which was virtually full outside of its scope. Also, the rule only covers schools and not other specialist facilities. This amendment is not intended to prevent the change and development of services. It is a fallback power to ensure that vital services are not lost.

Turning to Amendment No. 70, children with special needs do not depend only on schools but on a range of people and resources, including educational psychologists, learning support teachers, and sometimes specialised aids for particular impairments. There will be a number of cases where the resource or employee will be transferred to one council and some of the children using the resource will transfer to another. Of course, the authority where the child lives will have a duty to meet the child's needs, but they will be dependent on another council to meet that need. As the Bill stands, that other council will have no duty to help the children who formerly benefited from the service that they have inherited. It would hardly be surprising if, in some cases, they decide to direct resources away from services which benefit children throughout a wider area to services for their own children.

There is recent experience of the problems that can arise where one body has the statutory duty while another body has the necessary facilities. Many children with special needs require speech therapy. Where that is included in a record of needs it is the responsibility of education authorities to ensure that the child receives it. However, speech therapists are employed by health boards. The assumption was that boards would co-operate with education authorities, but sadly that is not always the case. It was not until the media uncovered hundreds of children without speech therapy and many took legal action that effective steps were taken to resolve the situation. This amendment seeks to avoid the same thing happening again.

As well as protecting individual children, this amendment could help to ensure that specialised expertise is not lost. For example, each council will have an educational psychology service. However, a council may not inherit a psychologist with particular skills in, for example, deafness. The duty to co-operate would give an impetus for the council which does employ those specialists to allow them to assist deaf children over a wider area rather than undertake a more general role within their own council. I beg to move.

Lord Addington

I rise to my feet at this very late hour to speak very briefly for the first time on this Bill, for the simple reason that the noble Lady's amendments make tremendous common sense to anybody who knows anything about dealing with special needs.

As the term "special needs" would suggest, it covers a vast range of difficulties. It is almost inconceivable that any one authority of any size will have all the necessary expertise to deal with all those difficulties. You are talking about everything from motor difficulties, movement difficulties and wheelchair difficulties to people with perceptual difficulties. All those will come under the heading of special needs.

It is very common practice in all parts of this country to transfer people between authorities and to other forms of teaching, and also between other forms of support outwith the education system when people are inside it. I hope that the Government will be able to see their way, if not to including these amendments, to making sure that this type of facility is allowed for in this Bill. There is no way that providing children and young people with the education that they need can be guaranteed unless you are able to pool the resources of all those authorities that can physically be reached.


Lord Fraser of Carmyllie

I am grateful to the noble Lord, Lord Addington, for his brief contribution to this important debate. I am sure that on all sides of the Chamber there is a very real anxiety that the provision made for children with special educational needs should continue to be protected. In that I am sure that we are at one.

But my response to Amendment No. 69 tabled by the noble Lady, Lady Saltoun, is that in our view it is unnecessary because there are already in place extensive safeguards for the stability of special schools and for necessary services for children with special educational needs.

The Education (Publication and Consultation etc.) (Scotland) Regulations 1981 apply to special schools in just the same way as they apply to other schools. The noble Lady narrated some of the circumstances in which the Secretary of State is already involved. Our conclusion would be that he is so involved that there are no changes of significance affecting special schools which do not require that participation by him.

Our conclusion is that the amendment would not add to the safeguards in any meaningful way. However, the noble Lady provided some detail. I shall read carefully what she had to say and if I consider that there is some supplement that might be given to the protection that she wishes to ensure is there, I shall advise her before we return to this matter at a later stage.

I wish to resist Amendment No. 70 for the following reasons. First, the amendment seems to be based on something of a misunderstanding of the effects of the Bill and the statutory provision for special educational needs. Specifically, no services as such are to be transferred from the old authorities to the new.

The Bill creates new authorities. In making the new authorities education authorities, the Bill automatically makes them subject to the same statutory duties as existing education authorities with regard to children and young persons with learning difficulties. Therefore they will be bound by law to ensure adequate and efficient provision for pupils with such special educational needs. To carry out such a duty effectively, authorities will need to ensure access to the necessary support services.

In view of those safeguards, I hope that the noble Ĺady will understand that her amendment is unnecessary. But, as I indicated, I shall look to see whether there is any additional matter in what she said.

Lady Saltoun of Abernethy

I listened very carefully to what the noble and learned Lord said. I wonder whether we are slightly at loggerheads on Amendment No. 70—or rather that there is a slight misunderstanding. It is not that the services would have moved, but the places that they were would be in a different authority from the authority where they had formerly been situated.

However, I shall read carefully what the noble and learned Lord said. I am grateful to him for his undertaking to do the same by me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 70 not moved.]

Lord Thomson of Monifieth moved Amendment No. 70A:

Page 27, line 51, at end insert: ("(4A) Every council shall have regard to the desirability of providing an adequate common service for the stocking and professional support of libraries in the schools for which it is responsible and for this purpose shall take account of such services of this nature as have been provided by existing regional councils in its area. (4B) Where two or more councils are of the opinion that the most satisfactory means of providing such a service as is mentioned in paragraph (a) above would be by establishment of a joint service they shall exercise their powers under subsection (2) (a) above whether or not a joint board or committee for the carrying out of other education functions has been established.")

The noble Lord said: This amendment deals with the central back-up services for school libraries, which are at present provided by all nine regional councils in Scotland and which I believe are seriously at risk as a result of the degree of fragmentation into smaller authorities caused by the reorganisation. The amendment is identical to one moved in Standing Committee in another place. I mention that because I believe that it was the only amendment moved in the committee on an all-party basis; that is, all four parties in the committee put their names to it. The amendment would require all new councils to have regard to existing school library services.

I understand that in the discussions in another place, although the Government resisted the amendment, they stated that they accepted its purpose and undertook either to table their own amendment or to deal with the point by means of regulations made by the Secretary of State under Clause 57. My understanding is that the Government have since decided that they prefer the second option of regulations and gave assurances to the Scottish Library Association, which is anxious about the matter, that it will be consulted not only in general on the point, but also on the actual text of the draft regulations.

The Scottish Library Association is grateful to Ministers and to the Scottish Office for their understanding on this important issue. I mention that because I want to place their appreciation on record in your Lordship's Chamber. However, I want to press the Minister a little further and ask that, when his officials are implementing the undertaking—which I hope he will endorse this evening—he ensures that there is some degree of pressure on the matter. It will not be enough for the regulations simply to allow councils to co-operate in running joint services for central school library back-up services. What is needed in the regulations is something like the text of the amendment: an obligation on councils to co-operate in the quality of the service.

The regulations should make clear that councils should consider acting jointly on this important aspect of education even if they decide not to act jointly on other aspects of educational functions. I can foresee that, for all sorts of reasons that we all recognise—political and otherwise—councils may not want to pool the entirety of their education services. But we do not want to see Scotland's excellent school library services imperilled as a result of the reorganisation. I do not believe there is any need for that, and I hope that the Minister can give the Committee, and those concerned with the school library service in Scotland, reassurance and confidence on those points. I beg to move.

The Earl of Balfour

I am grateful to the noble Lord, Lord Thomson of Monifieth, for tabling this amendment because it gives me an opportunity to discuss what I always felt was one of the disadvantages of the present system of local government in Scotland; that is, that education and school libraries are run by the region, but that the general libraries to which most of us can go are run by the district council. This is a lovely example where I am glad to say that they will both now be run by the same authority.

This is a field where I hope that grants and assistance can be available to provide books. Children must be able to obtain books and learn the valuable lesson of reading books of all sorts. Equally, it is awfully nice if their parents can borrow from a library the books that are so often necessary. Unfortunately, books are ever increasing in cost and it is a great expense.

I am extremely grateful that the amendment was tabled. It is a most important issue and a situation where I should like to see special assistance given. I know that some of my local schools have suffered recently because they have not been able to obtain the books that they wanted.

The Earl of Minto

I wish to make one brief comment in regard to what was said by the noble Earl, Lord Balfour. In point of fact, not all regional authorities in Scotland share the responsibility with the districts. Some have total responsibility for both schools and the public library service.

Lord Fraser of Carmyllie

As the noble Lord, Lord Thomson, indicated in moving the amendment, when an amendment on similar lines was tabled in another place it did indeed enjoy all-party support. Following the debate on that amendment the Government gave a commitment that the spirit of the amendment would be met either by a government amendment at Report stage or by regulations tabled by the Secretary of State. In the event it was decided that secondary legislation would be the preferred and more flexible route. I should like to take this opportunity to indicate to your Lordships that the commitment made then still stands. The Government will be consulting in due course on the proposed regulations. I should like to make clear, in answer to the question which the noble Lord addressed to me, that I am happy to give the further undertaking that the Scottish Library Association, to which he referred, will be consulted before the regulations are tabled. I am grateful to the noble Lord for raising this matter and to the other noble Lords who contributed to the debate.

Lord Thomson of Monifieth

I am obliged to the noble and learned Lord the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

[Amendment No. 70B not moved.]

Clause 33 [Structure plans]:

[Amendment No. 70C not moved.]

Lord Mackie of Benshie moved Amendment No. 70D:

Page 28, line 10, at end insert ("and shall fully take account of the need to integrate land use and transport policy.").

The noble Lord said: The words of the amendment sound like a maxim on which one cannot be contradicted. It is quite obvious that in any structural long-distance planning one has to take into account how the rivers run, how the towns have been, where industry should go, where industry should not go, where shopping centres should be situated and the whole social and environmental life of the area. The area needs to be a properly structured area. This is a very competent amendment which, although it appears to be simple, is very necessary in the shaping of a joint structure plan area.

The second amendment to which I wish to speak is Amendment No. 71 A. It is an important amendment and one on which the Town Planning Association and the Royal Town Planning Institute in Scotland were particularly helpful. They were particularly insistent that a structure plan needs a plan board. It is not enough to have a joint committee. The essential thing is that the strategic planning and transportation joint board should have a separate existence and a separate purpose. Indeed, it should be motivated by that. Although it is a joint board, its separate existence and purpose are extremely important.

The question of having a joint committee should be resisted because such a committee would not have that separate existence and separate purpose. If you have a joint committee, it is apt to concentrate on the needs of its own council area and to have an attitude of "not in my back yard" or even of "in my back yard" in the case of desirable areas, while not taking account of the needs and development of the whole area. Again, it appears to us that the joint board must be instituted. We must not depend on joint committees.

Strategic planning will become more and more important in the future because of the environmental dangers that are evident in this hot spell. A Los Angeles-type smog is descending on London. Such factors need to be taken into account.

In speaking to Amendments Nos. 70D and 71,I shall not say any more other than that the establishment of the joint board, with its own existence and purpose, is essential for long-term strategic planning.

12.15 a.m.

Lord Carmichael of Kelvingrove

Although I did not move Amendment No. 70C, that was not an intellectual decision; it was a matter of not managing my papers well. I should like to speak to Amendment No. 71 and to point out that if the Government were to accept it, they would have to incorporate the provisions of Amendment No. 70C also.

As the noble Lord, Lord Mackie, said, the purpose of Amendment No. 71 is to ensure that before the Secretary of State designates structure plan areas, he consults with planning authorities affected, adheres to objective guidelines and has a duty to secure economy, efficiency and effectiveness in designating areas.

It is essential, when the Secretary of State designates the structure plan areas under the powers given to him by the Bill, that he can demonstrate that the areas he so designates are wholly appropriate for the delivery of an efficient structure planning system. Thus, the Secretary of State must ensure that there is acceptance among the local authorities concerned that the area defined is the correct one for effective strategic planning.

Local authorities will be required to work jointly on the preparation of structure plans in the areas defined and it is essential that these local authorities can have confidence that the area covered by the structure plan is suitable for strategic planning purposes. On this basis, provisions should be included in the Bill, which requires the Secretary of State to consult with the local authorities concerned before finalising any structure plan area.

During the debate on structure planning in the House of Commons, the Minister, Mr. Stewart, said: On determining the areas for structure plans, I can give the Committee the assurance that my right hon. Friend the Secretary of State will consider those relevant matters and will consult with the authorities involved".—[Official Report, Commons, First Scottish Standing Committee, 10/3/94; col. 1088.] CoSLA, which is involved in such matters, believes that such a duty should be included on the face of the Bill, as indicated in the amendment, given the importance of structure planning.

In the event that the Secretary of State does not agree with the representations made by local authorities in response to proposals for structure plan areas, it would be extremely helpful, in the interests of openness and in making clear the parameters within which the Secretary of State wishes to see strategic planning developed in any area, that he makes clear in writing to the authorities what view he has taken of the representations.

It should be stressed that joint arrangements for structure planning will have less chance of success if there is a lack of acceptance by the authorities involved in the joint process that the correct area has been identified. I commend the amendment to the Minister. There are a number of amendments grouped with this amendment which I support, and I support the noble Lord, Lord Mackie of Benshie.

The Earl of Minto

My name is associated with the amendments spoken to by the noble Lords, Lord Mackie of Benshie and Lord Carmichael of Kelvingrove. They have given such a clear explanation of the amendments that I do not wish to add much. I would like to say merely that from experience there is a great difference between the reactions of joint committees and those of joint boards.

When the Bill was first published it was that area of the Bill above all others which was drawn to my attention by the whole of my council. One does not get areas of Scotland working well if it is left entirely to them in joint committee structures. There is a serious need for joint boards on this occasion. That may surprise the noble and learned Lord because he has heard me speaking against joint boards on a number of amendments and on Second Reading. There are places for them within authorities, and I believe this to be one. The Scottish Society of Directors of Planning and the Royal Town Planning Institute have produced amendments for us to bring before the Committee which have considerable merit from the point of view of local government in Scotland.

The Earl of Glasgow

I support my noble friend Lord Mackie, the noble Earl, Lord Minto, and the noble Lord, Lord Carmichael, on this group of amendments. One point that has always disturbed me about the whole Bill is the assumption that single tier systems are, by definition, good, more efficient, more labour saving and more accountable and that two-tier systems are almost by definition bad. That is rather like the presumption that privatisation is necessarily good and nationalisation is necessarily bad. Sometimes the thinking seems to stop there.

I suggest that in some cases single tier government is good and more appropriate for one particular area of Scotland and in other cases two-tier government works better. Large conurbations such as the Strathclyde conurbation can be seen to work better under a two-tier system. One of the reasons why it works better is that the Strathclyde conurbation, which consists of about one-third of the population of Scotland, has an umbrella body—Strathclyde Regional Council. At the moment it is responsible for strategic planning and an integrated transport system. That is something that cannot be handled comprehensively by individual authorities within the conurbation.

I know that the Government recognise the importance of strategic planning. Yet, as my noble friends have mentioned, the present Bill leaves that to joint committees. The Government accept that joint committees, which represent the relevant local authorities, will inevitably have conflicts of interests as regards strategic planning for the whole area.

At least joint boards, as proposed in the amendment, would have some real authority and could make overall planning and transport decisions that were independent of any individual local authority. The joint board would then be responsible for the structure plan for its area that would go forward to the Secretary of State for approval. At present, a number of alternative plans are submitted to the Secretary of State by, almost certainly, dissenting local authorities, all with their own axes to grind.

With the imminent abolition of, as I see; it, the workable two-tier system, in particular in the Strathclyde area, the set of proposals in this group of amendments is at least preferable to the joint committee scheme proposed in the Bill. They can preserve at least something of what is best in the present two-tier system. I sincerely hope that the Government in their hearts will believe that too. I add my support to this group of amendments.

Lord Fraser of Carmyllie

Perhaps I may deal with the amendments in a slightly different order. Amendment No. 71 seeks to impose a duty on my right honourable friend the Secretary of State to have regard to certain specific issues and to consult planning authorities before making an order designating structure plan areas. I repeat that our underlying objective in this legislation is to give the new authorities the flexibility in the making of their own arrangements to reflect the different circumstances of the different parts of Scotland. That applies as much in relation to earlier debates on education and other responsibilities as it does in relation to planning.

I emphasise that in drawing up structure plans, my right honourable friend the Secretary of State will have regard to matters of economy, efficiency and effectiveness in the use of their resources, as Amendment No. 71 suggests. But he will also want to consider a wide range of other matters, including roads, transportation and the way people travel to work, shop or search for a house. While I do not reject the importance of concentration on these particular matters, I must say to the noble Lord, Lord Mackie, that I would consider it inappropriate to single out any specific issue in the Bill. Indeed, if this amendment were accepted, it would be necessary to decide what other topics ought to be considered in a similar matter.

Amendment No. 70D deals with joint planning and transportation committees. I am not at all displeased that there is a desire on behalf of those who contributed to the debate to ensure that land use and transportation policies are integrated in the preparation of structure plans. However, I am bound to say that I do not consider that the particular method of achieving this is appropriate or necessary.

The current legislation in respect of structure plans is widely cast and structure plan authorities are free to include and to co-ordinate land use and transportation issues in their plans where they consider it appropriate so to do. Thus, there is no bar whatever to co-ordinating these matters in structure plans and there is no intention to alter these arrangements under the new structure. Accordingly, it seems to us that specific reference on the face of the Bill is unnecessary.

The noble Earl, Lord Minto, correctly anticipated that, were it not for the lateness of the hour, I should take some pleasure in twisting his tail because he and others have so vigorously rejected the idea of joint boards; and yet as we deal with specific areas of local authority responsibility, it is those who were opposed to Clause 20 who are now enthusiastic advocates of its use in a particular set of circumstances.

We still wish to persist with our objective of leaving the maximum discretion with the new councils, leaving them to devise their own arrangements for fulfilling their functions in relation to the preparation of structure plans. But of course I appreciate that there may well be circumstances—and I bow to the noble Earl's greater experience of local government—in which it may prove difficult to achieve that without the use of joint boards.

Of course, under Clause 20 local authorities will be able to request my right honourable friend the Secretary of State for Scotland to establish a joint board in the event of failure to settle matters sensibly. But even if the parties do not make the request and even if they are at each other's throats to such an extent that they will not make such a request to him, I should highlight the fact that Clause 20 enables the Secretary of State to set up a joint board and to direct planning preparation by one or more of the authorities.

Contrary to the view expressed by the noble Earl, we hope that it will not be necessary to establish joint boards. However, I hope that he will be reassured by the knowledge that should it prove to be necessary, powers exist for that. Therefore, what is proposed in this group of amendments is essentially a duplication of powers already provided in the Bill.

12.30 a.m.

The Earl of Minto

Perhaps I may pursue one matter with the noble and learned Lord. We spoke earlier about flexibility for the new authorities. The Minister will not be surprised to learn that I am strongly in favour of that. He has my complete support in that regard.

It is helpful to know whether or not something works from experience, but there is no experience to show that what is proposed in this Bill will work. That is what is fascinating. We have experience of joint boards and we know that in certain circumstances they work amicably, without friction. It is unfortunate that we should be invited to wait until things go wrong. The odds are that that will be the case. I am sorry to say that in these circumstances the —I hate the word—NIMBY syndrome may prevail and selfishness may play a leading role. Sooner rather than later, the Secretary of State may find that he must view this particular circumstance and he may wish that he had taken on joint boards in the initial stages.

Lord Mackie of Benshie

Due to the lateness of the hour I shall not continue the argument. I believe that the Minister has made a tremendous mistake by not agreeing to the creation of joint boards, with their definite purpose and separate existence. The noble Earl, Lord Minto, agrees with me in that regard. Of course, joint boards may have different purposes and different applications. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 74 not moved.]

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 75:

Page 28, leave out lines 20 to 22 and insert: ("(5) An order under this section shall be made by statutory instrument which shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament." ").

The noble Lord said: The designation of structure plan areas is a most important matter and one which should be approved by both Houses of Parliament. The amendment would require parliamentary time to be found to debate such important matters and allow Members of both places to comment on the proposals and raise matters of concern. I beg to move.

Lord Fraser of Carmyllie

I am a little confused. I do not wish to be discourteous to the noble Lord, but I thought that we had already dealt with this amendment.

Lord Carmichael of Kelvingrove

I apologise. In the circumstances, I shall not move the amendment.

[Amendment No. 75 not moved.]

Clause 33 agreed to.

Lord Ewing of Kirkford moved Amendment No.75 A:

After Clause 33, insert the following new clause:

( "Emergency planning areas

.—(1) The Secretary of State shall by order designate areas (emergency planning areas) in respect of which authorities shall provide an emergency planning service.

(2) Every local government area in Scotland shall be included in an emergency planning area.

(3) Each area designated by the Secretary of State in terms of subsection (1) above shall be of such a size as will be capable of providing an effective strategic emergency planning service.

(4) Authorities whose areas are included in an emergency planning area shall engage suitable staff sufficient to provide the service detailed in the foregoing subsection.

(5) Where an emergency planning area includes the area of more than one authority the authorities concerned shall perform the emergency planning service in accordance with such arrangements as they might agree for that purpose under sections 56 (discharge of functions by local authorities), 57 (appointment of committees) and 58 (expenses of joint committees) of Local Government (Scotland) Act 1973.

(6) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: The proposed new clause deals with the requirement placed on local authorities to establish emergency planning areas. I need not speak at any great length on the matter because I am sure that the Minister understands and accepts the essential need for the designation of such emergency planning areas. I shall give Members of the Committee three brief examples all of which I know well. In my old constituency of Falkirk and Grangemouth, which is a very high-risk area because of the petro-chemical sites, there is at present a strategic planning area to deal with emergencies.

If the Government's position prevails in relation to three local authorities in Central Region, as distinct from the one that I would like to see, the problem is that, in the event of an emergency at Grangemouth, most of the serious casualties would not be taken to Falkirk but would be taken to Stirling. There would be a need to co-ordinate between the three authorities as regards emergency planning procedures.

The same difficulty does not apply in Fife where they have the electric gas plant at Mossmorran and the terminal at Braefoot Bay. However, in my view, a difficulty would prevail at Hound Point terminal, the off-shore terminal in the river Forth. It is all those high-risk areas where, thankfully, we have not had any major incidents. Of course, we have some serious incidents but none of a major nature where there has been a substantial number of casualties. Nevertheless, the risk remains. Therefore, I believe that it is necessary to write into the legislation by way of the proposed new clause the need to establish such emergency planning areas. I beg to move.

Lord Fraser of Carmyllie

I entirely agree with the noble Lord that it is indeed important for local authorities to have in place effective arrangements to mitigate the effects of any disaster which may befall the community. It is for that reason that in recent years we have encouraged local authorities to make use of their civil defence grant in the most flexible way. For some time now local authorities have aimed to provide for a proper and effective response to any eventuality.

Our view is that the existing legislation is fully compatible with that flexibility and that it achieves a maximum value for money from the civil defence grant that we pay. I am pleased to report that in Scotland much progress has been made under that approach and an excellent level of emergency preparedness now exists. That was borne out not just in theory but also by the local authority response to the major disasters at Lockerbie, on the "Piper Alpha" and, more recently, to the Tayside flooding and the "Braer" incidents.

In conjunction with the local emergency services, local authorities have developed planning arrangements appropriate to their local circumstances. We believe that they represent a sound basis on which to ensure continued, effective emergency planning in the revised local government structure that we now propose.

Again, we believe it is appropriate for the new authorities to determine, in the light of their local circumstances, the precise arrangements which are necessary to ensure an appropriate level of emergency preparedness. The noble Lord has given the example of those authorities around his former constituency. They will have particular circumstances to which they ought to be prepared to respond, and in our view it would not be right for us to prescribe what their arrangements should be.

While I acknowledge, of course, that the present regional structure will in one sense disappear, it is worth emphasising that the existing police force and fire brigade areas will continue and these could well provide a basis for continuing co-ordination among the relevant emergency planning agencies. While, as I indicated, we consider it is for local authorities to consider the feasibility of their arrangements, we stand ready to assist and to continue to work closely with the local authorities and emergency services on the ongoing development of local emergency preparedness. My officials have in fact contacted chief executives regarding the possibility of discussing the way forward and I am sure that in due course these talks will help to shape the delivery of both civil defence and emergency planning under the new proposed revised structure. With that explanation, I hope the noble Lord will be satisfied that we share his concern to ensure the right arrangements are in place.

Lord Ewing of Kirkford

This has been a brief but reassuring exchange of views on emergency planning areas. I am grateful to the Minister for what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 [Amendments of the 1972 Act:]

Lord Mackie of Benshie had given notice of his intention to move Amendment No. 75B:

Page 136, leave out lines 31 to 41.

The noble Lord said: These amendments with regard to the police have been put forward by the Convention of Scottish Local Authorities and seem to us to be extremely sensible. The purpose of Amendment No. 76 is to ensure that the impact of an amalgamation scheme on police effectiveness and local accountability is taken into account. That is obviously very important. Section 20 of the Police (Scotland) Act 1967 empowers the Secretary of State to amalgamate police forces in the interests of efficiency. The amendment seeks to include on the face of the Bill—

Lord Fraser of Carmyllie

I believe we were on Amendment No. 75B. The noble Lord is now addressing himself to the very important Amendment No. 76. But I think that Amendment No. 75B was considered along with the structure plan amendment.

Lord Carmichael of Kelvingrove

Is the noble and learned Lord suggesting that Amendment No. 75B has been discussed?

Noble Lords


The Deputy Chairman of Committees

Can I take it that the amendment is not moved?

[Amendment No. 75B not moved.]

[Amendments Nos. 75C and 75D not moved.]

Schedule 4 agreed to.

Clause 34 agreed to.

Clause 35 [Amalgamation Scheme]:

Lord Mackie of Benshie moved Amendment No. 76:

Page 30, line 11, at end insert: ("( ) Without prejudice to the generality of subsection (1) above, in making an amalgamation scheme, the Secretary of State shall have regard to the effect of said scheme on local accountability and the ability of the police forces concerned to discharge effectively their duties under this Act.").

The noble Lord said: I am grateful to the Committee for allowing me to proceed. I apologise if I made a mistake earlier. I think I can go straight ahead from where I left off, if the Committee can remember that far back. The whole point is that the amendment seeks to include on the face of the Bill a requirement that the Secretary of State will also have regard to local accountability when considering an amalgamation scheme. In the present trend towards, we hope, more local policing, I think this is important. There is anxiety at the recent trend of removing power from the local level in terms of police funding to a centralised point in recent years.

While policing policy currently emphasises the bringing of the police nearer the community through such policies as increasing the number of constables on the beat or placing an emphasis on neighbourhood policing, merely allowing an amalgamation scheme to progress solely on the grounds of efficiency ignores the points I have made. That is true, and it is recognised by a number of people. I believe that Amendment No. 76 deserves the support of the Government.

The purpose of Amendments Nos. 77 and 79 is to incorporate the provision contained in the Police (Scotland) Act. CoSLA welcomes the Minister's rejection of a national police force but is concerned that local inquiries are rejected as being merely time-consuming. We believe, in the context of amalgamation schemes, that local inquiries have an important part to play.

The purpose of Amendment No. 79 is to ensure that an amalgamation scheme is approved by both Houses of Parliament. I am sure that everyone will agree that that is essential in view of the importance of an amalgamation. It is important that local accountability is taken into account as well as efficiency. I beg to move.

12.45 a.m.

Lord Fraser of Carmyllie

I am delighted that we now have the right amendment. In answering the noble Lord, I shall similarly speak also to Amendments Nos. 77, 79 and 159.

Section 20 of the Police (Scotland) Act 1967 empowers the Secretary of State to make amalgamation schemes if he considers it expedient to combine police areas in the interests of efficiency.

Amendment No. 76 refers to effectiveness. Changes made in the Police and Magistrates' Courts Bill will provide for references in the Police (Scotland) Act for efficiency to be construed as including effectiveness.

The amendment refers also to accountability. In considering in future the desirability of changing the combined police areas to be established under the Bill, I have no doubt that the Secretary of State for Scotland would give a high priority to ensuring local accountability. Indeed, accountability is one reason why we are not proposing changes to the existing police areas in the Bill.

I see no reason, therefore, to include the amendment and I invite the noble Lord to withdraw it.

Amendment No. 77 would largely reinstate the existing provisions of Section 20 of the Police (Scotland) Act requiring a public inquiry in the case of amalgamation schemes proposed by the Secretary of State. Amendment No. 159 would have a similar effect on Section 36 of the Fire Services Act 1947 in relation to administration schemes.

I am well aware, from previous Bills dealt with in this Session, of the strong feelings which may arise from changes to police or fire areas. We would not wish to ignore local views or to decline to respond to local objections which are put forward. But we see serious disadvantages in the elaborate public inquiry procedures which apply in the current legislation.

Under present arrangements, if the Secretary of State is inclined to initiate compulsory amalgamation of police areas, he is required to publish details of the proposed scheme, to invite objections and then, if any of the interested police authorities object, he is obliged to set up a local inquiry. Once the inquiry has been held the Secretary of State must consider the report and may then determine whether the amalgamation should proceed. While the Secretary of State must listen to the views of the inquiry, he need not follow them.

Similarly, what is proposed in Amendment No. 159 is that any change in the structure of the fire service should be the subject of a public inquiry unless all the fire authorities concerned agree to it. This would mean that, although most of the fire authorities concerned and the Secretary of State were all in favour of a proposed change, one recalcitrant authority would be able to impede that proposal for a considerable period by insisting on a public inquiry.

If the Secretary of State were to propose changes to the combined police and fire areas established under the Bill, he would consult fully and would be obliged to give his reasons for not accepting objections put to him during consultation. We believe that to be a less protracted and expensive procedure but one which nevertheless gives sufficient opportunity for objections. I hope that the Committee will accept that that is a reasonable procedure.

With regard to Amendment No. 79,I can appreciate, as always, the attraction of affirmative resolution procedure for police amalgamation schemes. Perhaps the noble Lord has noticed the provision for affirmative resolution procedure in equivalent provisions for England and Wales in the police Bill. However, those English provisions are by no means identical to ours. In particular, amalgamation schemes under the police Bill could amend primary legislation. No Scottish scheme could achieve the same. It is for that reason that I draw a distinction and invite the noble Lord also to withdraw that amendment.

Lord Ewing of Kirkford

Before the noble Lord indicates his intention in relation to the amendment, perhaps I may indicate that in view of what the Minister said in relation to Amendment No. 159, it would not now be my intention to move Amendment No. 79A.

Lord Fraser of Carmyllie

Perhaps I may invite the noble Lord to reconsider that.

Lord Ewing of Kirkford

With that kind of temptation, who can resist?

The Earl of Minto

My name is associated with Amendment No. 77. With the leave of the Committee. I understand what the noble and learned Lord says. In point of fact it would be terribly easy for this specific system to be abused. The point of the amendment is to ensure much more rigorous and open examination of any amalgamation proposal. I do not believe that the noble Lord, Lord Mackie of Benshie, will necessarily wish to press the amendment. However, we should make a point on the issue.

There is concern in Scotland about a single police force. It would not be difficult—I do not suggest for one moment that it is in the mind of the Government at present—for such a situation to be arrived at. I believe that the tightening up contained within Amendment No. 77 has a good point to it. It is for that reason that I was pleased to put my name to the amendment. I shall leave it to the noble Lord to decide what to do about the amendment.

Lord Mackie of Benshie

I do not think that I shall make as big a mess of withdrawing the amendment as I did on moving it. However, that shows the dangers of plugging on at this time of night when we are all becoming rather weary and hot—the air conditioning seems to have gone off a little.

It is an enormously important subject. There are many fears. The noble Earl has expressed fears about the move towards a single force. We shall read what the Minister said and may return to the issue at a later date In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

[Amendment No. 78 had been withdrawn from the Marshalled List.]

[Amendment No. 79 not moved]

Clause 35 agreed to.

Clause 36 [Fire services]:

Lord Ewing of Kirkford moved Amendment No. 79A:

Page 32, leave out lines 34 to 41.

The noble Lord said: With bated breath and eager anticipation, I merely beg to move formally Amendment No. 79A standing in my name on the Marshalled List.

Lord Fraser of Carmyllie

I rather agree with the noble Lord, Lord Mackie, that perhaps we have gone far enough tonight. However, I thought we might just go to this amendment. I wish to explain to the Committee that the amendment is essentially a technical one relating to the preparation by fire authorities of establishment schemes for their areas. I simply wish to say to the noble Lord, so that he does not think I am in any sense pulling a fast one on him, that he may have a point with this skilfully debated amendment promoted by him.

I propose to take the matter away and look at it again before Report. It may be that I shall return with an amendment to meet the point that he has so skilfully made.

Lord Ewing of Kirkford

The age of miracles has not yet passed. I am very grateful to the Minister for his generosity and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clause 37 agreed to.

Viscount Goschen

My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.