Local Government Bill [H.L.]

HL Deb 28 February 2000 vol 610 cc410-44

Consideration of amendments on Report resumed on Clause 10.

Lord Dixon-Smith moved Amendment No. 21: Page 5, line 32, leave out subsection (4).

The noble Lord said: My Lords, Amendment No. 21 is a simple probing amendment. On reflection, when I looked at Clause 10(4), I noticed that the executive is referred to in this Part as, a mayor and council manager executive".

In most other parts of the world where there is an elected mayor, the elected mayor is the elected mayor and the council manager and does the whole job. Very often in the United States there may be a relatively small council which appoints a council manager to run its business affairs. The difficulty is that in both those descriptions the elected mayor and the council manager are doing the same job.

I am not quite certain therefore what the division of responsibilities would be under subsection (4) if the elected mayor, who is elected to run the council—and, therefore, one might have thought, would be its manager—appointed a manager to do that for him. If he did that, I cannot understand why one would need an elected mayor in any event; it seems to me that the council could appoint a manager if that is what it so wished.

I thought that the solution to the problem would be to move the amendment and to find out what the Minister has to say about it. That may help me to make up my mind. I look forward to his reply. I beg to move.

Lord Whitty

My Lords, I take it that the noble Lord is seeking clarification rather than seeking to press his amendment. It may well be that this is the least well understood form of the structures—and I suspect that that is also the case outside the House. We are anxious that we do not delete any form of executive structure which is contained in the Bill at the moment.

It is quite common in a number of other countries to have an elected mayor and an appointed manager. I suspect that the noble Lord is thinking more of the North American pattern, where the mayor effectively acts as the chief executive. The pattern here is designed to achieve a clear separation between policy development, which would be a matter for the council and for the mayor, and the day-to-day implementation of policy, which would be a matter for the council manager and for the officer corps. The mayor would provide the political leadership; the council manager would implement agreed council policy, guided by that political leadership.

When the Joint Committee considered this potential option, it felt that an arrangement involving a council manager might be more appropriate for rural areas and for areas where there were usually hung councils. In those circumstances, the relationship between the mayor, the council manager and the council would be slightly different from other areas where there was a clear political majority. That option, which is more equivalent to certain continental structures, should be provided in the Bill. In the view of the Joint Committee, at least, it is probably more appropriate for the rural and less urban areas. That may be the reason that it has not been taken up as a front runner among the structures of local government.

With that explanation I hope that the noble Lord will withdraw his amendment.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for that explanation. I am not sure whether it is my amendment, the Minister's explanation or something completely divorced from the proceedings which is causing so much hilarity. In any event, the Minister will be glad to hear that I shall study his explanation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 22:

Page 5, line 37, at end insert— ("() It may take such form as the local authority considers, after it has taken reasonable steps to consult local government electors and other interested persons in the authority's area, will—

1. (a) enhance decision-making,
2. (b) meet the principles of transparency, accountability and efficiency, and
3. (c) be appropriate to local circumstances.").

The noble Baroness said: My Lords, Amendment No. 22 seeks to outline what one might call the "fourth option". On a similar amendment at a previous stage, the Minister said that if the objective of the option was greater diversity, then it did not achieve it. This amendment is not so much about diversity as about getting back to basics, although it seeks to set out the framework which we believe will be appropriate for a further option.

This is a variation on the amendment I moved at the earlier stage. It provides that executive arrangements as adopted through regulations may take the form that the local authority itself considers appropriate, and it may only adopt that form after it has consulted its electors. It will enhance decision making, meet the principles of transparency, accountability and efficiency and be appropriate to local circumstances. The reference to local circumstances is important.

On the last group of amendments the noble Lord, Lord Smith of Leigh, said that we need to know how the public can express a view. That is a very fair point. This amendment would achieve that objective, or certainly something might be built on it. I beg to move.

Lord Whitty

My Lords, as I indicated in an earlier debate, the three categories of executive arrangements already made available in the Bill allow for a fairly wide diversity of choice. They do so by setting out the basic framework for each option to ensure that the new structure has a clear, separate, transparent and accountable executive responsible for most of a council's functions. I appreciate that the amendment does not explicitly seek to make executive arrangements voluntary—which was the subject of a previous debate—but it does provide a broader discretion than we are prepared to accept, in that councils themselves could devise a form of executive that approximates very closely to the status quo should they so wish.

It is clear that any such arrangements would require further provision and modification to other enactments, but it is not clear how that would be achieved. In a few minutes we shall come to the question of the power in the Bill for the Secretary of State to define further forms of executive. If a council has a clear proposal for a further form of executive which meets the aims of enhanced efficiency, transparency and accountability, we should use that power to establish an alternative model. However, this proposal is somewhat more open-ended. We should not be convinced that the proposal is not a way of allowing councils effectively to make a few minor modifications to their current committee structure rather than to move wholeheartedly to an executive structure. Therefore, I am afraid that I cannot accept the amendment.

9 p.m.

Baroness Hamwee

My Lords, sadly, the Minister confirms what we have all been suggesting: that even if the criteria spelled out are met, the central government model is to be followed. I am sad. I accept that the Government are quite set on the matter, but it is sad that they have not yet moved towards us in any way. There is still time to work out how we can ensure the meeting of criteria which are agreed on all sides to be important. A model which has been consulted on locally and has obtained local approval cannot be put in place through some automatic procedure, but it is still a matter—not even for the Secretary of State to approve on a particular basis but to meet a form which the Secretary of State may prescribe in regulations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 23: Page 5, line 41, leave out paragraph (a).

The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendment No. 24. Amendment No. 23 seeks to leave out paragraph (a) of Clause 10(6), which provides that regulations may provide for a form of executive, with each member directly elected to a specified cabinet post.

I am still unclear as to why subsection (6) is necessary at all. We are back to the old argument that the executive may take a form to be prescribed in regulations which, may, in particular, provide for". some—but it must be by definition not all—of the possible forms. Since the provision does not attempt to spell out all the forms, why is it necessary or appropriate to spell out only those?

I have particular concerns about that model which I expressed in Committee. The Minister stressed that the Government have no clear plans about the particular form of the executive, but they want to ensure that no "potentially valid"—those are the words he used—form of executive should be closed off. That of course begs the question of how one interprets the words "potentially valid". We have a particular difficulty about directly elected cabinet members when they are elected to particular posts. I simply do not see how it is practicable at local level to apply that kind of model.

Over dinner I was talking to my noble friend Lady Miller of Chilthorne Domer about how few people we have come across, particularly in the smaller authorities, who have any enthusiasm for doing the job themselves. To elect an individual who wants to be mayor, who will set out his stall and go for it knowing that it is a full time job is one matter; but if one is to have a directly elected cabinet where a number of individuals are asked to put themselves forward for a major job in the local authority, which may or may not be fulfilling but certainly requires them as individuals to take important decisions about the direction in which their lives and careers will go, I do not believe that the people are likely to be available. If there are direct elections to individual cabinet posts, how does one swap around? Must one keep having by-elections if people find that they simply cannot juggle their lives as they believed they might be able to do?

I do not like the model, but more particularly I want to ask why subsection (6) is necessary at all. It is restrictive. If subsection (5) means anything, must we have subsection (6)? I beg to move.

Lord Whitty

My Lords, subsection (6) is in the Bill primarily to ensure a degree of flexibility. The noble Baroness's amendment would in fact restrict that flexibility. The reason for Clause 10(6) as a whole is to make it clear that there may well be options on which the Government do not have any fixed view as to the form they take. It is there to ensure that there is the widest scope to provide for forms of executive which may be requested by local authorities—or, indeed, by others—and which the Secretary of State may be convinced meet the aims of the Bill; namely, efficiency, transparency and accountability. By providing such scope it gives a range of possibilities which may potentially fall under it.

The Government have put forward subsections (2) to (4) which provide for three forms of executive. We believe that each of those forms already contains a fairly wide range of diversity of arrangements in practice which may apply to different kinds of authorities. We believe also—this is the point to which I was in a sense alluding in our earlier debate—that we must have the ability to provide for further forms of executive should they seem to be appropriate at some point in the future. The power exists in Clause 10(5), but the provision for its scope is in Clause 10(6). The noble Baroness's amendment would limit it.

The purpose of Clause 10(6) is to avoid any doubt about our ability to use the power to provide a form of executive which had more than one person directly elected to it and about the way in which the members of the executive would be elected and whether they could be elected to specific posts. The noble Baroness has indicated that she does not consider that direct elections to specified posts would be desirable. There are of course arguments in that direction. It could limit future flexibility. The Government have no plans to introduce such a structure or to impose such an arrangement.

It may well be that certain local authorities would find such an executive desirable at some future stage. Internationally, there is a strong tradition, particularly in North America, for direct elections to many public posts. Noble Lords may have different views as to whether that is a system we would wish to import here. Nevertheless, it is a system which has to a large extent stood the test of time in America and one which could be adopted here in some form. The Government are looking at all potential alternatives which may be produced in the future which have the executive there and meet the broad objectives but which are different from the ones currently prescribed on the face of the Bill.

It is also true that some local authorities might wish to have a directly elected cabinet without specifying what posts the cabinet members would occupy. Clause 10(6)(b) ensures that the power in Clause 10(5) is wide enough to cover that contingency as well. Therefore, it provides for quite a range of flexibility. The noble Baroness asked how one would move people from one place to another. That model allows for that.

To delete part of what is proposed restricts that flexibility. The Government would like to see as much flexibility as possible in the scope for adopting genuine executive structures and believe that the categories that will be made available on the face of the Bill of themselves provide a wide range. The Government would be prepared to go further. That is why there is the power by regulation to make further categories of executive arrangements available. The Government are trying to ensure in this context that the potential range is as wide as possible because they recognise that as councils gain experience of the various models, on the basis of that experience they may want to identify other structures which they may feel are more appropriate to them. When that happens the Government want to be certain that they can make available new categories which prove to be worthwhile and valuable, and not to exclude international analogues which may have worked in other countries.

I should point out that the regulations under Clause 10(5) would be subject to the draft affirmative procedure. The House would then have an opportunity to debate further any order the Secretary of State was minded to make on this issue in the future. Therefore, there would be another point at which parliamentary scrutiny could intervene. It would not entirely be a matter for the Secretary of State alone.

I understand the concern of the noble Baroness that all this should be decided by local authorities and that the Secretary of State should simply rubberstamp any option they come up with. However, we think that certain criteria have to be made. Therefore the regulations and the judgment of the Secretary of State have to be able to ensure that those structures meet the broad objectives of efficiency, transparency and accountability. That is provided for, as is the right of Parliament to have a say on it. I hope that that demonstrates our flexibility on executive structures, which, although not as wide as was contended in the previous debate, are fairly broad.

Baroness Hamwee

My Lords, before the Minister sits down, I wish to be quite clear. The Minister talks about being flexible and open-minded and so on. Would not the most flexible arrangement be to include Clause 10(5) and not to include Clause 10(6)? On the one hand he appears to say that the possibilities within what can be termed executive arrangements are limitless; on the other hand he says it is important to have Clause 10(6) because it sets out the other models. It appears to me that the most flexible approach would be not to include subsection (6) at all. Can the Minister assist me?

Lord Whitty

My Lords, my contention on flexibility did not quite reach the point of being limitless. There are limits and there are criteria to the scope. Those are set out in Clause 10(6). I would not want noble Lords to think we are completely open-ended in our views here. We do need to limit the scope to meeting the criteria and to allowing the kind of structures which the noble Baroness did seem to take objection to. My contention is that although she may find Clause 10(6) as a whole more restrictive than limitless, her amendment will actually make it more limited, not less.

Baroness Hamwee

My Lords, I take the point on my amendment. I am assuming that Clause 10(6) restricts Clause 10(5). I should perhaps have framed my question to the Minister: is Clause 10(6) exclusive? In other words, can there be models which do not fall within Clause 10(6)? The Minister talked about Clause 10(6) as being the criteria. They are the models rather than criteria in the sense of principles.

Lord Whitty

My Lords, Clause 10(6) states, may, in particular, provide". Those models suggest potential scope but not exclusive scope.

Baroness Hamwee

My Lords, it is helpful that the Minister has said that they are not exclusive. I thank the noble Lord for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Baroness Thomas of Walliswood moved Amendment No. 25:

Page 6, line 6, at end insert— ("() The authority may determine the title to be used for the position of mayor elected under this Act.").

The noble Baroness said: My Lords, this amendment would introduce a new subsection between subsections (6) and (7) of Clause 10. Its purpose is to enable local authorities to determine the title of the directly elected person always described in the Bill as the "mayor". The amendment was discussed at the Committee stage on 25th January. It was introduced by my noble friend Lady Hamwee in a short debate which ended at 11 p.m. On that occasion everyone was extremely brief. I shall try not to make that an excuse for speaking at length today.

The main point of the amendment is to deal with the situation where there already is a mayor of a local authority who is a local councillor elected by the council to chair the council and to be the non-party representative of the council at a wide range of more or less formal occasions within and outside the local authority. Some observers have suggested that the Government do not seem to understand or have any sympathy with the extremely useful social and community role, as a non-party representative of the council, that such mayors and, for that matter, the chairman or chairs of other local authorities perform. We have had a good deal of anecdotal self-explanation today. I shall merely say that I am one of many chairs of local authorities who have found the role extremely interesting and have also been aware of the interest which other people have in the presence of the representative of the county council at their celebration or opening ceremonies. The people whom the chair or, in the case of this amendment, the mayor contacts in the course of the mayoral year—be they from local authority organisations or from the voluntary sector—are genuinely pleased to have that presence. That role brings together people in the community.

When responding to the amendment in Committee, the noble Baroness, Lady Farrington of Ribbleton, said that in a case where the local authority—probably a borough—which already had a traditional mayor moved to the system of a directly elected mayor, the, Government would either need to find a different title for the elected mayor or let local authorities choose a variety of titles for that figure".—[Official Report, 25/1/2000; col. 1536.] She added that the Government preferred the clear rule that if there is an elected mayor, it is that figure who is known as the mayor, leaving the chairman or chair of the local authority to be known by that title rather than the traditional title.

At this point I remind the House that the traditional title of mayor may be a recent one, dating back only to the reform of local government in the 1970s, but it may be a very ancient one as well, one which few local authorities will want to abandon. In any case, the approach that was expressed by the Minister was quite different from ours. We want not the Government but local authorities to be able to determine the title of their elected executive person or their directly elected mayor. I do not want to use the word "mayor" because I want to put the whole character of the name into question. I prefer to use the term "the elected executive". For some local authorities, "executive leader" might be a more suitable style. That is what used to exist in local authorities where there was a clear majority government. The mayor or chairman was the non-party representative of the council and the leader of the council was the political leader of the council. For some people the name "executive leader" might be more suitable. That would enable local authorities to retain their mayoral title if that was precious to them. I beg to move.

Lord Whitty

My Lords, although I have some sympathy with the difficulty indicated by the noble Baroness, there is a dilemma. It may well be true that people appreciate the non-political nature of the mayor and the presence of the traditional mayor, be it a borough mayor, city mayor or lord mayor, as a ceremonial personage. However, when one asks them about local government, the reason people like the idea of elected mayors, at least at first sight, is that they want someone who has clear executive power. I suspect that, among the population as a whole, most people who are not familiar with local government assume that a mayor does have executive power in some sense. They think of a mayor more in the American or French style than in the British style.

Certainly, if we are to move to a system where directly elected mayors are the executive power, and the title "mayor" is the best way of epitomising that, it is difficult to say that the directly elected person should not be designated "mayor". In those situations where we do move down that road and there is an existing role in the same authority—as a local authority function as distinct from, for example, a charter function—or there is a pre-existing ceremonial mayor, the title would need to be that of mayor or something like it to distinguish those people from the mayor who has statutory functions under this executive structure.

The Government did give some thought to whether "mayor" was the correct title. In the end, we settled for it because it was the obvious choice—indeed almost the only choice. It is used in local government all over the English-speaking world, and similar titles exist in the French-speaking and Spanish-speaking world. I suppose that "Bürgermeister" is not very different either. In most European languages the title "mayor" has a ring about it. In France, the United States and New Zealand, for example, mayors have similar functions to those envisaged in the Bill for the elected mayor here. If we did not call that person the mayor, we should have to think of some alternative title with a similar ring to it. It has been suggested to me, for example, that "governor" could apply in the counties. In the south of England, "governor" would not convey quite the right message—prestigious though it may be in the United States. No other title has been suggested. The noble Baroness suggested "elected leader". That does not have the right ring about it.

Baroness Thomas of Walliswood

My suggestion was "executive leader".

Lord Whitty

"Executive leader" likewise, my Lords, does not have the same resonance as "mayor".

If your Lordships accept even three-quarters of my argument—as I am sure you will—I accept that that leaves a problem in relation to ceremonial mayors, if I may so call them. We shall have to find a way—or local authorities may find different ways—of describing the continuing role in those communities. But that seems to me a secondary issue. One has to accept that for those who are lining up to be mayor in the next three or four years it may not be academic. However, it is a secondary issue in terms of the reform of local government that we are trying to put through and the importance of the role of elected mayors in those authorities that choose that system.

I believe that we should stick with the title "mayor". We should accept that an important job is done by ceremonial mayors but that we must find a description which may incorporate the title "mayor" but which will be distinct from the statutory role of mayor under these models. I hope, therefore, that the noble Baroness will not pursue the matter further.

Baroness Thomas of Walliswood

My Lords, the Minister is, as always, optimistic when he says that he is certain that we shall accept at least three-quarters of his argument. He began by referring to what people think. Most people do not think about local government, or indeed any government, most of the time. But when they need to know how it works, they are usually pretty canny at finding out. They have no difficulty in distinguishing between the mayor of a borough or city and other people in that borough or city.

The noble Lord referred to lord mayors, whose office is, I believe, governed by charter or statute. It is doubtful that one could ever get rid of that title without a great deal of effort. Perhaps the law which governs the foundation of mayoralties is part of the body of statutes which the Government intend to knock for six in the context of this particular piece of legislation and the powers contained within it. The issue is a secondary one, in the sense that nobody thought about it until the process of legislation began. I suspect that it will be one of those tiresome issues that plague the Minister because insufficient attention has been paid to the obvious problem of what to do with existing mayoralties. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 26:

Page 6, line 8, at end insert— ("() A member of the authority may attend and speak at meetings of the executive as deputy or substitute for a member of the executive by whom the deputy or substitute is appointed but may not vote.").

The noble Baroness said: My Lords, Amendment No. 26 takes us back to deputies and substitutes. My amendment provides that members of the executive may have deputies or substitutes but they may not vote. I raised this issue at Committee stage when the noble Baroness, Lady Farrington, said that because the Government were concerned to avoid conflicts of interest no deputation or substitution had been allowed. While this amendment would not allow the deputy to vote, it would allow for practicalities: for example, if a member of the cabinet was abroad or ill or, in the interim period before a by-election—if that was how matters proceeded—in the event of resignation or death.

I regard this as an entirely practical matter which would not do any harm to transparency or accountability. I said in relation to an earlier amendment that academics, among others, had analysed and criticised—I use that term in a particular way—the Government's proposals. One particularly well known academic commented that the arguments about transparency and accountability did not appear to create problems at national level when another Minister acted in the absence of the Cabinet Minister. The Minister and the noble Baroness are perhaps in a far better position than I am to comment on that, but I believe it to be a fair point. Executive members are likely to carry a heavy load. I believe that to prevent them from being supported by deputies in the rather modest manner that I propose will not assist them in carrying out their functions. I beg to move.

Lord Tope

My Lords, I rise to give strong support to the amendment. Perhaps I may illustrate the point in a slightly different way. As I am not currently on the Front Bench I draw attention to my own local authority, to which I referred during Second Reading. In Sutton we have 46 Liberal Democrat, five Labour and five Conservative councillors. We have restructured the council to separate the executive and scrutiny functions. We have a 10-member cabinet, although we prefer to call it a strategy committee. Eight of its members are Liberal Democrats; one is Labour and one is Conservative. That is done with all-party agreement. That model and the Government's alternatives were put out to public consultation last summer. The Local Government Association told us that we received what was, at least at that stage, the largest public response that anyone had had. Eighty per cent of the public who responded supported our model, which has been working very well since September. At present we allow substitutes. However, if the Bill is passed, and the regulations are implemented, we shall not be able to do so.

If one of the eight members of the majority party is not present, of course he is missed; he makes a valuable contribution. But it is not the end of the world; there will be seven others of us there. However, as we have decided to adopt an all-party model, supported by all parties and the public in our borough, if one of the opposition members is not present, the voice of the opposition is denied to us.

In Committee, the Minister's reply was clear: we want to separate the executive and scrutiny functions. I understand that. In this amendment, we are providing for someone to attend and to speak—in the instance I cite, to give the opposition view—but not to have a vote. In other words, he does not share directly in the decision of the executive. It may happen occasionally that the voice he gives may not be entirely supportive of the majority of the executive. But we believe that it is an important function. Unless deputies or substitutes are allowed to attend and speak, under our model—and I am sure Sutton is not the only place where it occurs—we shall, in effect, deny the opposition party the right to put its view while the cabinet, the executive, considers what it wishes to do.

The opposition party will have later opportunities. It will be able to raise the issue in full council when all 56 of us can have a grand debate. That is not the same. The role that the opposition plays in the executive is valuable. The model has been in place since September, and it works well. We have met fortnightly; it will be every three weeks. Inevitably, there will be times when one of the opposition members cannot attend. Indeed, one member from the Labour Party is working hard to become a member of the assembly; and I am sure working hard for the official Labour candidate. Very occasionally, for some strange reason, he sees that as a higher priority than attending the fortnightly executive meeting. I am sure he will learn the error of his ways soon enough. However, if the Bill were enacted now, the Labour Party would be denied the voice which at Second Reading, the Minister, the noble Lord, Lord Whitty, assured me it would continue to have for as long as it wished.

I hope that the Minister will see the good intent underlying the amendment and will either accept it or assure us that, once the Bill is enacted and the regulations in place, appointed substitutes will still be able to attend and speak at meetings of the executive, although they will not have a vote.

9.30 p.m.

Baroness Farrington of Ribbleton

My Lords, perhaps it would be helpful if I begin with the issue relating to the role of Ministers on the Government Front Bench. Although there may have been occasions when the combination of noble Lords' interests in this Bill and on potential aspects of the Learning and Skills Bill led to a degree of repetition, as a member of the executive neither the Minister, the noble Lord, Lord Whitty, nor I were able to go away leaving noble Lords speaking at length on specific matters while Members from the Back Benches sat on the Front Bench. That is the difference. As members of the executive, we have the pleasure of sitting on the Front Bench and hearing all the points of view put forward by noble Lords, sometimes with repetition to add emphasis to their point of view.

Amendment No. 26, dealing with deputising or substituting, is in conflict with our view about the nature of the executive member and the overview and scrutiny committee role. We believe that the position should be clear. Whether the proposed deputy would have a vote, frankly, misses the point. We believe that the clear lines of responsibility are important in this context.

However, having said that, I must emphasise that we believe that it should not be seen as providing for a total separation in terms of the policy implemented by the local authority. The executive will wish to take advice from other councillors and they will all come together to determine the policy of the authority. The noble Lord, Lord Tope, in giving his example, saw the scrutiny role always occurring after the event and there being no contact with the executive role. I suspect that with his many years' experience in local government, the noble Lord is well aware of the position taken by minority groups on key policy issues.

We believe that it is important to avoid the possibility of conflicts of interest. We do not see the scrutiny role as being subordinate but see it as being complementary. Therefore, we believe that people's clear view of where the executive decision and responsibility lie would be blurred and damaged by the process which the noble Baroness seeks to introduce in the amendment. I hope that she feels able to withdraw it.

Baroness Hamwee

My Lords, the logic of the position that the Minister has expounded—that scrutiny is not confined to being after the event—leads to asking why there is a need for an executive. The Minister seemed to be saying that the full council could do the job.

My noble friend illustrated very well the problems inherent in the restriction. We shall not convince the Government, but I hope that as time goes on and the difficulties become apparent it will be possible to find a way to allow the executives to work practically by adjusting regulations.

Baroness Farrington of Ribbleton

My Lords, is the noble Baroness aware that it is open to the executive to invite anyone to speak at its meetings? The noble Lord, Lord Tope, were he to be unaware of the Conservative or Labour Party policy on any issue, would be able to invite someone to come along and speak, but he or she would not be a member.

Baroness Hamwee

My Lords, I am aware of that, but it is different from someone coming along to deputise for a particular member. However, I accept that we shall make no progress, as we would see it, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Joint exercise of functions]

Baroness Miller of Chilthorne Domer moved Amendment No. 27: Page 11, line 40, leave out (", is") and insert ("or a committee of the authority or specified member or members of the authority, is or are").

The noble Baroness said: My Lords, in moving Amendment No. 27 I shall speak also to Amendments Nos. 28 and 29. They seek to explore and create flexibility in the functions exercised by joint committees between two different local authorities. I thank the Minister for his letter of 28th January in which he went into considerable detail in Annex F about the joint arrangements and how they might work.

While most of his letter was useful, Annex F raised a number of questions which it is necessary to clarify. Joint arrangements between a county and unitary councils or county and district councils are the only way such bodies can work together to create best value. That is crucial at county and district level, but it applies to small unitary authorities within large county areas because of the mish-mash of arrangements left after the local government review.

Annex F, with the joint arrangements outlined, made it clear that the Government have in mind an arrangement whereby a county council working with a district council will need to choose whether such a joint committee will exercise executive or non-executive functions. If it were to exercise executive decisions and functions, it should consist only of executive members and political balance would not be required. The difficulty with that first model is that there may be no members of the executive of the county council who are resident in that district's area.

Although the Government may not feel that that matters, it is quite clear that when we come to what I shall call "model 2", which is where the joint committee might exercise non-executive decisions, they specify that members must be from the electoral divisions or wards which are wholly or partly within the area in question. Therefore, they have recognised that it is important that in any joint committee local members who are elected to that part of the county are those who exercise their representational role. Therefore, even if executive decisions are being undertaken, it is not desirable that there should be such a clear division.

For an individual authority, a clear line can be drawn between executive and non-executive functions. A problem arises when we move to joint committees. I take as an example waste collection and disposal, which is perhaps the function that sits the worst, being divided between district and county. I believe that some of the time a joint committee will need to implement policy decisions, which I consider to be an executive function. Some of the time it will have to scrutinise how that is working. I believe that a joint committee could make vast progress in implementing ways of collecting waste that would lead to far less of it needing to be disposed of. After all, that is one area in which everyone struggles, both nationally and locally; that is, how to reduce the vast mountain of waste. That is the kind of area in which a joint committee could be very effective, and there are many others.

The Government have conceded that within an area committee—I refer now to an area committee which belongs to only one authority—there is no reason, as the Minister states in his Annex E, why the same area committee cannot discharge both the executive and non-executive functions delegated to it. Therefore, my first question to the Minister is: could that same arrangement not apply to the joint arrangements between, say, county and district? I believe that in order for them to implement their functions in the best way and in the best interests of residents, they will need sometimes to be able to address both those areas.

I turn to the question as to whether the committees should be politically balanced. When one looks at two different local authorities, the government requirement that they should be politically balanced if they are to address non-executive decisions is very difficult. Let us suppose that the county council, which, after all, is elected in a different electoral cycle, is composed of almost entirely one party—for the sake of argument, Liberal Democrat. The district members who were elected two years previously might be virtually all Conservative or all Labour members. To achieve political balance, all the members from one authority will be from one party and all the members of another party will represent the second authority. First, I do not believe that that is a recipe for happy working. It would be better to have a party split by authority: perhaps the county members would consist of two Conservative, two Liberal Democrat and two Labour members, with the district similarly split. I do not believe that having sharp divisions will encourage joint arrangement working.

Further, I ask how much consultation has been carried out. That question came to the top of my mind when I finished reading Annex F and struggled with the difficulties in it about how partnership arrangements between counties and districts currently operate. How do the people who drafted the current arrangements and who, helpfully, have written Annex F come to their conclusions? Not many partnerships work successfully.

However, I believe that before the Government finally make up their mind as to what would be the correct model or models and how much flexibility is required, it would be most useful to go back to the councils which operate joint arrangements and explore exactly how they work and how they would or would not work if the current restrictive drafting, which our amendments seek to make more flexible, affected such partnership working. I beg to move.

9.45 p.m.

Baroness Farrington of Ribbleton

I understand the concerns of the noble Baroness, Lady Miller of Chilthorne Domer, which these amendments seek to probe. However, I am afraid that on this matter we have a difference of opinion and are unable to accept the amendments.

The fundamental principle which underpins the proposals in Part II of the Bill is that of transparency and accountability. Local people and all others who have dealings with a local authority need and have a right to know who is responsible for the decisions which affect them.

A separate executive, and in particular a mayor, will ensure that there is clear accountability for executive functions. People will know who is responsible. It is important to stress that those changes apply only where the joint committee is to have executive functions. The kind of example given by the noble Baroness, where there is a non-executive functioning joint committee would not be affected by the changes. The detailed arrangements for joint committees are, of course, matters for regulations under Clause 18, drafts of which we published in January to inform this debate and for wider consultation. We believe that joint arrangements in respect of executive functions should be joint arrangements between the executives of the two authorities in question.

To allow the council to determine that some executive functions must be delegated to a joint committee, possibly against the wishes of the executive, and to allow that committee to have members who are not members of the executive would cloud the principle of accountability which we seek to enhance and cut across the principles which underpin this legislation.

Our policy is that it should be for the executive to decide whether executive functions may be the subject of joint arrangements. It should be for the executive to decide the membership of any joint committee discharging those executive functions. The membership of such a joint committee should be drawn from the executive. That will ensure clear accountability and responsibility for executive functions.

There would, of course, be nothing to prevent an authority forming a joint committee with another authority on a non-executive function basis. There would be nothing to prevent them offering advice to the executive or to prevent them from co-opting other councillors onto such joint committees in an advisory capacity alone.

Perhaps it would help the noble Baroness, Lady Miller of Chilthorne Domer, to recall that these matters are for regulations. We have published a draft of those regulations for consultation and we will consider carefully all the responses.

We accept that there are similar issues with area committees. However, our experience is that there is not normally extensive delegation of functions to area committees over and above functions which are local matters and do not have an impact beyond the area in question.

We believe that the powers in Clause 18 do not need amendment to enable provision with the effect the noble Baroness seeks. Our policy is not to make such provision. We feel, therefore, that the amendments are unnecessary.

I repeat and stress that such joint arrangements and provision will be effected only if there is executive function as part of the role of such committees. I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Thomas of Walliswood

My Lords, before the noble Baroness sits down, can she say whether the expenditure of a limited amount of money within policy guidelines is an executive or a non-executive function? Many joint committees make such decisions and it works; that is, action is taken involving small amounts of expenditure.

Baroness Farrington of Ribbleton

My Lords, my consideration of this matter is that it depends on what the money is spent. It may be helpful for me to write to the noble Baroness. If I were to await further inspiration from the depths of my memory, I might detain noble Lords for too long.

Baroness Hamwee

My Lords, before the noble Baroness sits down, perhaps I may say that this may be an example, as the noble Baroness, Lady Carnegy, would put it, of thinking rather than considering.

Baroness Miller of Chilthorne Domer

My Lords, I thank the Minister for her reply and accept that much of what I referred to will be in draft regulations. However, I should like some reassurance from her that before the regulations become anything more than draft, the Department for the Environment, Transport and the Regions will check once again with places that are working successfully in partnership to ensure that the draft does not inhibit that working.

I am concerned that authorities will not be able to make executive decisions, particularly in the geographically large counties, save by perhaps shipping in executive members from the other end of the county, which may be 40 miles away. That is not joint working within a district. If the Minister can give me that reassurance—I know her department is keen for these partnerships to succeed—I shall feel able to withdraw the amendment.

Baroness Farrington of Ribbleton

My Lords, I give the noble Baroness the assurance that we shall consider extremely carefully the points that she raised.

Baroness Miller of Chilthorne Domer

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment, Nos. 28 and 29 not moved.]

Clause 19 [Overview and scrutiny committees]:

Baroness Hamwee moved Amendment No. 30:

Page 12, line 40, at end insert— ("() Unless the matter is certified by the authority's monitoring officer to be urgent, no decision by a local authority under its executive arrangements shall be implemented within less than five working days after the decision.").

The noble Baroness said: My Lords, in moving Amendment No. 30, I shall speak also to Amendment No. 31 in the name of the noble Lord, Lord Dixon-Smith.

Clause 19, which deals with the overview and scrutiny committees, is much broader than the original version. It was fleshed out by the Government's amendment in Committee. It makes clear that the overview and scrutiny committees have a forward-looking role as well as one which looks backward. However, Clause 19 also provides that there is a right of call-in when a decision by the executive has not been implemented. By that I mean a right to require that a decision be reconsidered or considered in a different way. Clause 19(3) gives the committee those powers but says, to review or scrutinise a decision made but not implemented".

It is important that the executive of any authority, while it should be able to take and implement urgent decisions, should not be allowed to avoid the proper exercise of an overview and scrutiny committee by bulldozing through the implementation of its decisions. I therefore provided in the amendment that no decision taken by the authority under executive arrangements should be implemented within less than five working days after the decision, unless the matter is certified to be urgent by the authority's monitoring officer. I accept that there may be occasions when swift implementation is important. I think that is unlikely to be the general position, but it is right that an executive should not be able to avoid proper scrutiny and avoid proper use of powers by its own overview and scrutiny committee by rushing to implementation. I beg to move.

Lord Dixon-Smith

My Lords, Amendment No. 31 is grouped with this amendment. It deals with a different aspect of a parallel problem and is more concerned with the rights and responsibilities of overview and scrutiny committees and members of those committees.

The amendment would mean that a member of a relevant overview and scrutiny committee could hold up a decision by a member of the executive or the executive itself, because it should be remembered that the executive has power to delegate to a committee of the executive or to an individual member of the executive.

It is a matter of regret that too often in local government we have seen authorities or members of authorities abuse their position, and improper procedures have been used for personal gain.

The situation that I envisage may be highly unlikely and ought never to happen—but it is our business to envisage unlikely events. It is where a member of the executive, under delegated authority from the executive, lets a contract outwith the normal approval procedures for personal gain. Under the existing remit of the Bill it would be possible for an individual member to do that. It is true that he would be supervised by officers, and one could assume that that is a sufficient safeguard, but it might not be sufficient to prevent impropriety. However, I have asked myself this. Suppose an observant member of an overview and scrutiny committee was on the ball. Should he not have the right to do something about the situation and prevent the problem from arising? I decided that he should have that right.

I am prepared to accept that the amendment may not be perfectly worded to meet the situation that I have suggested and that we would need to improve upon it, but the principle is a correct one. The overview and scrutiny committees should have power to call in a decision before it is implemented if necessary. This is not a power that would enable one member alone to do that because he would have to get a second opinion and go to the chairman of his committee. The chairman would have to agree that the case he was presenting for the decision to be called in was a proper and appropriate one. That would provide a safeguard in a situation where personal angst or a personal grudge could prevent proper action.

Even if the Minister cannot agree to accept this amendment, I hope that she will at least consider its implications. Perhaps she will think about the question and bring forward a more appropriate solution. I beg to move.

10 p.m.

Baroness Farrington of Ribbleton

My Lords, we are unable to support Amendments Nos. 30 and 31 because, as the noble Baroness and the noble Lord have acknowledged, both would delay the implementation of decisions by the executive. The amendment of the noble Baroness, Lady Hamwee, would delay implementation by five days unless a decision was certified as urgent by the monitoring officer, presumably to allow the overview and scrutiny committee time to call in the decision. The amendment tabled by the noble Lord, Lord Dixon-Smith, would allow a member of an overview and scrutiny committee, with the support of the chair, to delay implementation of any decision until the committee had considered it.

We agree with noble Lords that it is important that members of the overview and scrutiny committees should be able to discuss any action by the executive. As amended in Committee, Clause 19 gives the overview and scrutiny committees power to call in executive decisions. However, we do not wish to be prescriptive about how this should work. It should be up to local choice. If we are to have more efficient decision-making, we do not want a situation where every decision could be blocked by a disgruntled minority for purely political reasons.

As noble Lords will recognise, in some cases urgency is vital; for example, instructing an officer to remove a child from a dangerous situation. This should not be delayed while the views of the monitoring officer are sought to confirm that it is a matter of urgency. At the other extreme, sometimes decisions taken by the executive will simply require officers to work out proposals for future policy consideration. Although it would rarely do any harm, it does not seem sensible that such decisions should always be subject to the five-day delay. We also believe that the monitoring officer, who has the power of providing advice on vires and maladministration, should not be given the task of determining the urgency of decisions; indeed, we believe that that would change his or her role.

However, I am sure that the noble Baroness and the noble Lord have noticed that these amendments appear to reflect some of the suggestions that we have included in draft guidance. We suggested that only two councillors might be needed to ask an overview and scrutiny committee to look at a decision and that they have only five working days in which to do so in order to maintain effective and efficient decision-making. We also suggested that councils need to take a sensible view on which type of decision they allow to be called in. I should stress that these were suggestions. We believe that the details should be a matter for local determination and choice and not prescribed in the Bill.

Therefore, although we understand and appreciate some of the points made, I hope that the noble Baroness and the noble Lord will feel able to withdraw their amendments in the light of the fact that local authorities may make their own judgments within the framework of guidance.

Baroness Hamwee

My Lords, I may be doing the Minister and her department a disservice, but, when we are told that certain details must be a matter for "local choice", I begin to wonder whether they are the more difficult matters. I accept that the situation I outlined is not as broad ranging as one might need, but it is up to us to tackle the issues. The Minister says that these are matters for local choice. But how can that be? One has to look at existing constraints which will, presumably, translate into procedural standing orders, and so on. Something along the lines of what I proposed should be up there with the other provisions that will inform those standing orders.

The example the noble Baroness gave of a child being taken into care leaves me with more questions because it suggests that it will not be possible to delegate such decisions to officers. Is the noble Baroness saying that a decision such as that of taking a child into care would be led by an officer and that one has to wait for a meeting of the executive? I am not clear how that kind of decision lies vis-à-vis executive arrangements.

Baroness Farrington of Ribbleton

My Lords, in the normal course of events it would quite clearly be a matter of judgment for a professional officer in a social services department. However, there could be exceptional circumstances in which a decision had to be taken because something was unforeseeably outwith the normal policy guidance and the normal terms of reference.

Baroness Hamwee

My Lords, I understand that. It seems to me that the arrangements for an overview and scrutiny committee to intervene should take account of the need for an exceptionally urgent arrangement. My provision about a monitoring officer's involvement may not be correct, but I do not think that it is too far wrong either. Consideration on our part and on the part of practitioners of precisely how this will work in practice will be well worth undertaking.

Baroness Farrington of Ribbleton

My Lords, it may be helpful if I give the noble Baroness an example without going into enough detail for anyone to be able to identify the individual concerned. Prior to the previous administration taking office and constraining the roles of chairs of committees, a chair of a committee could be approached as regards a particular policy which was generally opposed to that of the authority. I refer to the case of a child who was the subject of an adoption order where family violence and tragedy were involved and where the only answer was for that child to be placed, at the authority's expense, in a privately funded boarding school along with the siblings of the family in which the child was to be placed for adoption. That is the kind of situation one envisages, not one where, for example, a social worker made a judgment to seek a place of safety order. I hope that that helps.

Baroness Hamwee

My Lords, I thank the noble Baroness for that example. I have not disputed that there are difficult situations and that the arrangements ought to be modelled to take account of them. I cannot take the matter further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Baroness Hamwee moved Amendment No. 32:

Page 13, line 1, leave out subsection (4) and insert— ("(4) An overview and scrutiny committee of a local authority may discharge any functions imposed or permitted by the authority other than those functions specified by the Secretary of State in regulations.").

The noble Baroness said: My Lords, Clause 19(4) provides that, An overview and scrutiny committee … may not discharge any functions other than its functions under this section". That prompts the question: are the Government absolutely sure that they have Clause 19 completely correct? I assume that the Government are not quite sure about that at the moment because they have tabled an amendment to the clause. My Amendment No. 32 would reverse the position. It states: An overview and scrutiny committee of a local authority may discharge any functions imposed or permitted by the authority other than those functions specified by the Secretary of State in regulations". In other words, the Secretary of State can prevent overview and scrutiny committees undertaking certain activities but that is not as tight and inflexible a provision as a clause which states that primary legislation governs exactly what an overview and scrutiny committee can do and that it cannot do anything else at all.

Let me give an example of an area of council operations which may exercise some authorities under the new arrangements. The client/contractor split, with separate DSO committees, has been introduced in many local authorities. I believe that that issue is not covered in the draft guidelines. I assume that the executive will therefore have responsibility for both client and contractor. It may be that a local authority would want to replicate the current split and would find it convenient for the overview and scrutiny committee to take on the client role. It seems that that would not be allowed if we leave the clause as it is. As people become familiar with what can and cannot be done and with what is convenient under the new arrangements, there will be many more examples of that kind, and it might be useful for an overview and scrutiny committee to deal with them for the benefit of an authority. Primary legislation which is too restrictive could adversely affect the working of the authority. I beg to move.

Lord Whitty

My Lords, overview and scrutiny can comprise a wide range of functions, but it would be wrong to alter the clause to allow overview and scrutiny committees to undertake functions which are clearly executive functions or functions which may not be mandatory for the executive in the legislation but which are, nevertheless, executive functions for example, licensing and so on. There may be some edges which need to be made clearer in the final guidance.

The issue that the noble Baroness raised in relation to the client/contractor arrangement was picked up in responses to the consultation and we shall consider the implications of that. But to move to allow the overview and scrutiny committees to take on, in the broadest sense, executive functions would not be appropriate. The committees are there to hold the executive to account for what it has done, for its plans and for how its statutory functions and other functions of the council are being discharged. It would blur the accountability were the overview and scrutiny committees themselves to carry out such functions. I wish to maintain that distinction, albeit that in operational terms "overview and function" could be quite broadly interpreted.

Baroness Hamwee

My Lords, I admire the Minister's confidence that by the end of the legislative process the drafting will be perfect. I do not challenge the executive/scrutiny split he referred to in his reply. I was simply suggesting that prudence might indicate that a mechanism which allowed for some revision after a little experience would be a good thing. But one can go so far in trying to smooth the process and I have perhaps gone further than I should have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 33:

Page 13, line 6, at end insert— ("() Executive arrangements by a local authority must include provision which enables—

1. (a) any member of an overview and scrutiny committee of the authority to ensure that any matter which is relevant to the functions of the committee is included in the agenda for, and is discussed at, a meeting of the committee, and
2. (b) any member of a sub-committee of such a committee to ensure that any matter which is relevant to the functions of the sub-committee is included in the agenda for, and is discussed at, a meeting of the sub-committee.").

The noble Lord said: My Lords, in moving Amendment No. 33 I shall speak also to the other amendments in this group. They all deal with the role of the overview and scrutiny committee. I hope that they take us a few steps towards perfection. I am not necessarily claiming that we are absolutely there if we adopt the amendments.

The House will recall that in Committee the right reverend Prelate the Bishop of Blackburn tabled two amendments in regard to such committees and that we agreed we would take them away and look at them. I believe that we have addressed the bulk of the right reverend Prelate's concerns, although there may be some other areas of concern that he and other noble Lords may wish to raise.

Amendment No. 33 addresses a fundamental concern highlighted in the debate on those amendments. Overview and scrutiny committees are a key element of any new arrangements. They are there to ensure proper accountability. To ensure that the executive is held to account in a robust way, the committees should ensure that any committee member who has a particular concern about the way in which the executive functions are performed can have that issue discussed. It was for that reason the right reverend Prelate tabled an amendment to allow any committee member to have matters put onto the agenda and discussed by right. I believe that we have met that particular concern.

The remaining amendments in the group address one of the other concerns of the right reverend Prelate; one more broadly shared by all sides of the House: that is, the need to ensure that the vital role played by church representatives and parent governors in advising local authorities on education areas is protected. The Government greatly share the wish of the House to ensure that that contribution continues in future. That is why we wish to see church representatives and parent governors given a guaranteed role on overview and scrutiny committees dealing with education.

It was not felt that the amendments we brought forward in Committee adequately met those requirements. We have looked at the proposals brought forward by the right reverend Prelate and have agreed that more detail was needed. That is why Amendments Nos. 35, 36 and 38 remove the previous subsections from Clause 19 and Amendment No. 86 replaces them in greater detail in Schedule 1—as it now is—to the Bill.

I hope our amendment meets those concerns. I believe there is one issue addressed by the right reverend Prelate's earlier amendment which we have not addressed. It is the issue of the Bill requiring that there must be an overview and scrutiny committee dealing solely with education. In fact, what we have done goes somewhat wider than that request. For each executive function, there is a duty for there to be at least one overview and scrutiny committee. Education will be the responsibility of the executive and will therefore have to be covered by at least one committee.

However, we did not intend to limit those committees to the traditional narrow silos of responsibility along the old departmental lines of housing, education and so on. We should expect councils to take a more imaginative, joined-up approach to the structure of the committees, as they would to the executive. For example, an overview and scrutiny committee might well be set up to look at issues around lifelong learning or social wellbeing and in that context address issues relating to education. The Government would certainly want both church and parent governor representatives to be involved in such discussions. That is why we did not wish to restrict the committee remit unnecessarily.

Amendment No. 86 therefore guarantees the place, with voting rights, of church and parent governor representatives on overview and scrutiny committees which are examining education as part or all of their remit. I believe that that meets in a slightly different way the concerns expressed in Committee and ensures the important continuing strong presence of church and parent representatives at the centre of the council's policy development mechanisms. I beg to move.

10.15 p.m.

The Lord Bishop of Blackburn

My Lords, Amendment No. 33 in the Minister's name answers the concern I raised in Committee about the ability of members of the overview and scrutiny committees to control their own agenda. The important power to place items on the agenda will strengthen the position of all members, in particular, those appointed to represent the Churches, faith communities and parent governors, who might otherwise—we must admit—be a little overwhelmed by the local political parties. Those powers will be necessary for the effective scrutiny of the executive actions. I warmly welcome the Government's response.

On behalf of the Churches I want to welcome the intention of Amendment No. 86 to set out in a schedule the process for appointing church representatives and representatives of the faith communities where they are providers of schools within the area of a local education authority to any overview and scrutiny committee or sub-committee dealing with educational matters. I welcome also the force of paragraph 5 of the schedule in particular. In recent years, some local education authorities have questioned the right of church representatives to vote in committee on matters affecting the provision of church schools. This has been to prevent them from undertaking the very duty for which they were appointed. While church representatives on education committees are free to express themselves across the range of the educational work of the authority, they were appointed to represent the work of the Church as providers of schools in partnership with the local education authority and we have strongly challenged any attempt to limit their voting on grounds of interest. Paragraph 5 is therefore particularly welcome in that it clarifies the right of church representatives to vote on any education matter.

I come like Oliver Twist asking for a little more. I have written to the noble Lord, Lord Whitty, to express two remaining areas of concern with the amendment which I hope he will be willing to address as soon as reasonably possible. Although neither is of major importance, each would however ensure the smooth implementation of the Government's intentions in every local education authority. As seems to have become my custom in recent days, in both cases I speak with the support of the chairman of the Catholic Education Service.

The first area of concern relates to paragraph 4 of the schedule and is a matter of language. The amendment before the House refers to, the persons NN ho appoint foundation governors for Church of England schools in the area", and again in sub-paragraph (4)(b) to the persons who appoint foundation governors for Roman Catholic Church schools in the area This somewhat cumbersome form of words is that used in the Education Act 1944 and predates the legal establishment of diocesan boards of education in the Church of England in legislation in 1991, and the legal recognition of the powers in relation to Roman Catholic Church schools of the Roman Catholic diocesan bishop, in legislation in 1993. It would be particularly helpful if we could reflect this change. In practice it has always in the Church of England been the diocesan board of education that has nominated representatives to the local education authority concerned, although in fact a number of other bodies, parishes, deaneries and trustees do appoint foundation governors. A change of the language would avoid potential confusion, intentional or otherwise. Where there is more than one diocese covering the authority in question it would be up to the diocesan boards of education working together to agree among themselves, as they have in the past, which should make the nomination or, if they failed to agree, for the local education authority to appoint from among those nominated.

The other small outstanding area of concern relates to the Secretary of State's power under paragraph 6 of the amendment to give directions to a relevant English authority as to the appointment of church and other faith representatives to appropriate overview and scrutiny committees and sub-committees. We can envisage potential circumstances of doubt or disagreement as local education authorities develop their flexible plans for crosscutting working and joined-up thinking as to which committees and subcommittees should receive church representatives. Where this doubt or disagreement affects representatives of other denominations and faiths, other than the Church of England and the Roman Catholic Church, the Secretary of State has power under this paragraph to settle disagreement and give appropriate directions. Such power, it seems to us, the Secretary of State would not have in relation to the Church of England and the Roman Catholic Church representatives. We cannot believe that this was the intention of the Government and we would hope that this can be reconsidered and that the Secretary of State could be given the power under this schedule to deal with the representatives of the two major church providers of schools.

Lord Whitty

My Lords, as the right reverend Prelate said, he has written to me on both these points. On the second point it was not the intention of the drafting to achieve that outcome in relation to possible areas of dispute, it was merely to differentiate between those who had schools in the area and those who did not. We are looking at that.

On the first point, I am in consultation with colleagues in the DfEE to ensure that the phraseology we are using reflects fully that of the latest Education Acts, but by so doing does not exclude any other persons appointing. Those two items are in train. I regret that I am actually not able to give the right reverend Prelate the final formulation, but the discussions among officials are still continuing. I hope that by the time the Bill leaves this House we will have resolved those matters.

The Lord Bishop of Blackburn

My Lords, I am most grateful to the Minister for that reply.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 34:

Page 13, line 9, at end insert— ("() An overview and scrutiny committee shall be chaired by a member elected by the committee.").

The noble Baroness said: My Lords, this amendment deals with the position of the chair, or even chairman, of the overview and scrutiny committee. I raised this issue at the previous stage of the Bill when I expressed my concern that in some old-fashioned authorities there might be a temptation on the part of the administration to put into the chair of the overview and scrutiny committee someone who could be relied on to make sure that things went okay for the executive. I would propose that the chair of the committee should be a member of the opposition, but in some authorities there is no opposition; there is a one party state. We cannot legislate for that situation.

At the previous stage the Minister said that this must be a matter for local decision. My proposal is that it should be for the committee to elect the chair. I recognise that that is by no means a watertight method of avoiding the situation that I described where a member of the administration in all but name is put into place, but it would ensure that, at any rate formally, the chair could not be imposed by the executive and by those who have the responsibility for running the authority, if I may so express it.

I have been searching for a better way of dealing with what in a handful of authorities could be a real issue. I am not convinced that this is the best way but it is the best I have been able to think of. It would be helpful if the Government could give some assurances as to how the system could not be rigged or abused. I beg to move.

Baroness Farrington of Ribbleton

My Lords, I am still not clear why the noble Baroness, Lady Hamwee, wants to place this requirement on the face of the Bill. We leave it to councils to decide how chairs of committees should be selected and we do not see any case for acting differently here. We believe that the precise arrangements should be left to local choice. In our guidance we point out that councils might consider it appropriate to have some or all of these committees chaired by people who are not members of the ruling group. As the noble Baroness said, in a small number of authorities there are no minority members. But they are a small group. We believe it is important for all executive functions to be scrutinised, but it is for councils to decide how that should be done.

The noble Baroness seeks an assurance that it would not be possible for people to "rig" support. A separation between executive and overview and scrutiny is precisely aimed at preventing that power bloc of dead decision-making being taken outside the processes of the authority. I hope that I have managed to convince the noble Baroness to withdraw the amendment.

10.30 p.m.

Baroness Hamwee

My Lords, I shall withdraw the amendment, but I cannot say that I am convinced. I do not believe that simply designating someone as having an overview and scrutiny function will change the culture in an authority if that person is naturally sympathetic to those who have been his or her colleagues and who have run the authority in a way of which none of your Lordships would approve. It may change the culture over a long period; however, I do not think that it will address the situation in the early and medium term of the new arrangements being in place. It is a nice hope, but I do not believe that the title will change the culture. I am pretty clear in my own mind that some of those authorities that have brought local government generally into disrepute, or have reduced the reputation of local government, will find one of their number who will take up the position of chair of the overview and scrutiny committee and help his or her colleagues run the committee in a way that is as close as possible to the old arrangements.

I shall not pursue the matter now. However, I ask the Government to understand that this is a genuine concern on my part. Again, we are seeking to move in the same direction as the Government. We do not oppose what they are doing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 35: Page 13, line 12, leave out ("subsection (9)") and insert ("any provision made by or under paragraphs 6 to 8 of Schedule 1").

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 36: Page 13, line 15, leave out subsections (8) and (9).

On Question, amendment agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 37:

Page 13, line 35, at end insert— ("This provision shall not apply to a committee or subcommittee of an area committee which includes a minority of members who do not carry out executive functions.").

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 45. The amendments seek to place on the face of the Bill the fact that area committees, when exercising the appropriate overview and scrutiny function, which the Government helpfully said at the previous stage they might do, should not be subject to political balance requirements.

I fully accept the Government's position that area committees would be able to exercise this function. However, there would still be a requirement for councils to have an overarching scrutiny and overview committee that would ensure consistency throughout the authority. It is important to make it clear on the face of the Bill that area committees are exempted from political balance requirements, particularly in the light of the Minister's comment in his letter; namely, should an area committee happen to be politically balanced because that is how the electorate voted it in, it may discharge the overview and scrutiny function.

It would be a curious state of affairs if among, say, four area committees, one happened to reflect the exact political balance of the council and that committee could exercise the whole overview and scrutiny function whereas the other three could not. I appreciate that that is most unlikely to happen. However, our amendments would further clarify the situation. It is important to make sure that area committees are rightly able to scrutinise the delivery of local services and are not threatened with being unable to do so as a result of not being politically balanced.

Perhaps the Minister will clarify a point of concern on this subject regarding executive members. I have become more unclear as we have discussed the Bill as to exactly how an executive member will be able to represent the electorate at all. An executive member will not be able to be a member of the scrutiny and overview committee; and I gather that he or she will not be allowed to be a member of the area committee either. It seems to me that if the member is not able even to be a member of an area committee, it will be difficult for him or her to fulfil any kind of representational role, except in relation to purely regulatory functions. That may be the intention of the Government. However, 10 wards or divisions within a local authority area will effectively lose their representation altogether. In multi-member wards that is perhaps not so serious but in single member wards, which are quite common in my part of the country, the local electorate will begin to think that it is getting a very poor deal if the person it elects is not able to be a member of an area committee, where a good deal of the day-to-day business of the council takes place. In moving this amendment I look forward to the Minister's comments upon that difficulty. I beg to move.

Lord Whitty

My Lords, the Government understand the thought behind these amendments. However, they do not address the matter effectively and we cannot accept them. We believe that every council should have at least one authority-wide overview and scrutiny committee, as we made clear in draft guidance. Such committees should take a broad corporate view across the whole of the executive's decisions in developing and reviewing policy. There is nothing to stop a council from setting up area committees or fora—in some cases it would be very positive—to conduct reviews of policy and executive decisions, with particular emphasis on the impact on their areas. The recommendations could then feed into the wider review being conducted by the council-wide overview and scrutiny committee; or they could be sent directly to the executive or be fed into a full council debate on the particular policy area in question. We have encouraged that multifarious approach in the draft guidance, which makes clear that the Government recognise that in many authorities, area committees have an important role to play in bringing decision-making closer to the people. But in the end we believe that there must be a requirement for at least one authority-wide overview and scrutiny committee to take a corporate view and to avoid unnecessary and damaging turf wars between areas within the authority.

As far as concerns the role of executive members, we have indicated that nobody should scrutinise his or her own actions. Therefore, executive members cannot be members of overview and scrutiny committees but they can be members of area committees. They are also members of the full council. Therefore, in reply to the noble Baroness, there are at least two points at which they can fulfil the role of representing their constituents even within one-member wards. Area committees are also exempt from political balance, as is made clear in regulations. Those regulations will not change in relation to area committees once the new system is in place.

As to Amendment No. 37, it appears that the noble Baroness seeks to allow only area committees with a majority of members who carry out executive functions to discharge the overview and scrutiny function. That seems to us to cut across the fundamental principle that no councillor should scrutinise his or her own decisions. That is why members of the executive cannot be members of overview and scrutiny committees and why members of area committees, who discharge functions delegated by the executive, cannot in that context scrutinise their own decisions. The amendment of the noble Baroness would cut across that general principle.

However, I hope that the noble Baroness is not led to believe that the Government seek to restrict area committees from playing a real and important role in the development of policy and holding the executive to account. That does not mean that they need a specific power formally to discharge the overview and scrutiny functions. Therefore, I do not believe that these amendments are necessary. I hope that I have said enough to indicate that not only are area committees a potentially important part of the new structure but also that executive members are not quite as constrained as the noble Baroness alleges.

Baroness Miller of Chilthorne Domer

My Lords, I thank the Minister for that helpful reply, which goes a long way towards answering most of my worries. However, the last paragraph of Annex E of his letter to my noble friend Lady Hamwee clearly states: That is why members of the executive will not be allowed to be members of area committees". I shall read carefully his reply in Hansard and, if necessary, return to the issue at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 38: Page 13, line 42, leave out subsection (13).

On Question, amendment agreed to.

Clause 20 [Access to meetings and information etc.]:

Baroness Hamwee moved Amendment No. 39: Page 14, line 1, at beginning insert ("Subject to Part VA of the Local Government Act 1972,").

The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 40 and 41. Amendment No. 42 is the Government's proposed replacement for Clause 20 to which my amendments apply. Amendment No. 44, which stands in my name, is an amendment to government Amendment No. 42. The points in support of my amendments relate to Clause 20 as it stands at present, and are in opposition to the Government's amendment.

There are two issues in connection with openness and access to information: the openness, transparency and accountability of decisions of the executive, including meetings of the executive and extending to notice of decisions that are to be made and the papers relating to them; and decision making by individuals including elected mayors, and the framework for openness and advance notice.

Clause 20 does not seem to meet the requirements. It leaves access to information to be dealt with by regulations. They may maintain current levels of access. They may allow new executives to meet in private without prior notice of what will take place. Amendment No. 42 makes the situation worse. It spells out that executives can meet in private. It gives the power of decision on that to the executive, and not to the full council.

The access to information relates to records of decisions. There is no framework for agendas and papers to be made available in advance.

There is a provision for publication of information but only on decisions after the event in the case of the "strong mayor" model. There is a requirement that a written record has to be kept. But there is no longer any reference to the Local Government (Access to Information) Act 1985. I accept that the current Clause 20 could have allowed the Secretary of State to issue regulations bringing executives within the provisions of the Act. It is now clear that the Government do not intend to do so.

We on these Benches are extremely disappointed at the route the Government are taking on the issue. Other debates have expressed disappointment about the tentative and unambitious nature of the Freedom of Information Bill. In this Bill, we are going backwards. The clause would mean losing prior information about decisions to be taken. That would affect non-executive members of the council, the media and the public. As we have stated in previous debates on this and other issues, the non-executive members of the council have an important role as a conduit to the public, and in expressing what the public would say were they in a position to do so.

It is sad, too, that we have the provision in the Bill so close to the new provisions on probity and ethics. Greater secrecy and more ad hoc decision-making will make it harder for the monitoring officer to regulate. It will make it harder for the overview and scrutiny committee to exercise its functions and it will be harder to scrutinise declarations of interest, the award of contracts, and the appointment of other bodies and so forth.

No doubt the Minister will defend his proposed new clause and will promote it. We shall hear the reasons why in a moment. If I can amend it and oppose it in advance, that is what I am doing. However, the procedure means that what I am doing is moving that the current Clause 20 is made subject to Part VA of the Local Government Act 1972. I beg to move.

10.45 p.m.

Lord Whitty

My Lords, at this stage, I am speaking primarily to my Amendment No. 42. In Committee, I promised that we would look at whether we needed to set out the key principles underpinning our policy for accountable decision-making. Amendment No. 42 replaces the previous Clause 20.

As I made clear in Committee, the Government's starting point is to be transparent and accountable The principles are that a council's policy development must be inclusive, allowing the local community to make its input. It ensures that local people know who the decision takers are; what the decision takers are planning to do; what they have done; and why they have done it. Our system is based on those provisions.

The new structure we are putting forward in its totality will provide both accountability and transparency and, to some extent, set out the provisions for meetings of the executive which need to be seen in the wider context. Those arrangements cover the inclusive process of formulating policy; the identification of individuals who are personally responsible for implementing the budget and its framework; the accurate recording of decisions and their timely publication together with background and factual papers which were made available to the decision makers; and the vital role of the overview and scrutiny committees, meeting in public, to discuss and make recommendations on the development of policy and to hold each executive member responsible for what he or she has done, or the executive as a whole has done.

This is a whole new structure of accountability and transparency and will open the door for wider engagement in the council process. The executive will need to make clear from the outset what it plans to do; who on the executive takes particular decisions; and how it is intended to involve stakeholders and the community. There will be a continuous dialogue between members of the executive and the relevant overview and scrutiny committee. It is through that process that local people will discover the background as well as the individual decisions.

Amendment No. 42 puts those arrangements in place. It spells out the key elements of our policy. Coupled with Clause 19 on the role of the overview and scrutiny committees, it sets out the totality of the approach to transparency and accountability. An executive may choose whether or not to meet in public. Whichever decision it takes, it must ensure that proper records are taken and executive decisions, whether made by individuals or the executive as a whole, made publicly available together with all the background reasons and so forth. We intend by regulation to make failure to make or publish such records an offence. That arrangement would ensure that the executive is, in reality, not a small committee. It comprises several people, each with personal responsibility for delivering publicly aspects of the council's agreed policies. An executive will discuss such issues, but it will often be the individual who takes the final decision. Obviously, that will be the case particularly where there is a directly elected mayor.

If one applied the traditional access to information regime or made the executive in some way subject to that regime, as the noble Baroness's amendment attempts to do, that would fail to recognise the nature of the executive. Amendment No. 44 does not recognise that either. The amendment at least concedes that policy formulation needs to be carried out away from the public gaze, but it still does not recognise that the key role of the executive is to make and report those decisions. If other councillors are allowed simply to attend the meetings of the executive, that fails to recognise the reality of the executive as a group of accountable individuals. That risks sending back decision-making into entirely private, unaccountable and unrecorded meetings.

I believe that what we have provided more effectively meets the reality. Indeed, Amendment No. 43 in the name of the noble Lord, Lord Dixon-Smith, recognises that the key is not whether meetings are in public or in private but whether they are accountable. That is the key point of our whole operation. His amendment seeks to extend the duty to record decisions to those meetings where the executive chooses to meet in public. It has always been our intention that, where the executive chooses to meet in public, it should be subject clearly to Part VA of the 1972 Act. They are public meetings of the full council and council committees and they include meetings of the executive. There is little value in allowing the public to attend a meeting if they are not told in advance the subject of the meeting. To that extent, I share the views of the noble Lord, Lord Dixon-Smith. I can confirm that it is our intention that Part VA should apply to all meetings which are open to the public, subject to any necessary modifications of those provisions under the new structure.

I believe that our amendment puts the whole issue in the framework of enhanced accountability, whereas the noble Baroness's amendment attacks one particular aspect of the new provisions; namely, the issue of public or private meetings. As I said, I believe that the issue is not whether meetings are held in public or private; it concerns accountability. We believe that our provisions and the regulations that could flow from them will ensure accountability. Therefore, I hope that the noble Baroness will not pursue the amendment.

Baroness Farrington of Ribbleton

My Lords, for the benefit of noble Lords, because the amendments are grouped, it may be helpful if the noble Lord, Lord Dixon-Smith, were now to speak to his amendment to Amendment No. 42.

Lord Dixon-Smith

My Lords, with the concurrence of the House, I am happy to deal with my particular amendment, which seeks to amend government Amendment No. 42. As the Minister has already said, my amendment seeks simply to ensure that where meetings are held in public, proper records are kept.

I found the wording of Amendment No. 42 to be somewhat different from the words that the Minister used in his description of the Government's intentions. I found the wording of the amendment quite curious. It refers to: Meetings of a … authority executive, or a committee of such an executive, are to be open to the public or held in private". It goes on: Subject to regulations under subsection (9), it is for a local authority executive to decide which of its meetings, and which of the meetings of any committee of the executive, are to be open to the public", etcetera. Fair enough. Then it says: A written record must be kept of prescribed decisions made at meetings of local authorities executives, or committees of such executives, which are held in private". Immediately I wondered what on earth happens to the bulk of the business of the body which is held in public.

I think the Minister has given me an assurance, for which I am grateful, that the old rules would apply. However, the old rules do not appear to apply in the amendment, as drafted. However it may be that they do because I see in Section 10 a mention of the Local Government Act 1972.

I shall need to study this and take advice on what the Minister has said. If his assurance is correct and the position is covered, he will hear no more from me about the amendment. I shall be happy not to move it at this stage. However, we need to consider this carefully to ensure that the position is properly covered.

Baroness Miller of Chilthorne-Domer

My Lords, I rise briefly to express my disappointment that after all the discussions through the Nolan Committee and the Neill Committee, we now have on the face of the Bill the fact that the executive can meet in private. I accept the comments made by the Minister in Committee that if that were not the case such business would be conducted at group meetings, and so forth. However, surely it would be better at least to require the executive to meet in public, for a written record to be kept of group meetings and for whips to be declared.

This is not a step forward in openness, transparency and accountability, however often the Minister says it is; it is not. The effect will be that when a local authority has consulted the public, conducted its MORI polls and public opinion panels, the executive will be empowered to make policy decisions. However, the public will not know which decisions are being made. They will not be able to express any view to individuals of that executive before such decisions are made. Some of the people most disempowered by this provision are the minority groups which will probably not be picked up by MORI polls, public opinion panels and focus groups.

Earlier this evening we discussed equality of opportunity. Those with loud voices and word processors will not be too disadvantaged by this process. However, individuals with great interest in particular issues, or minority groups, will simply not know that quite often crucial decisions are being taken about which they can voice no opinion until after the event. They will be considerably disempowered.

Whichever way I see the amendment tabled by the Government I see it as a piece of disempowering legislation. I remain fundamentally disappointed that the Government have not gone the whole way and ensured that local authority meetings, whether executive, scrutiny committees, full council or whatever, should be held in public. As we move towards a new era of local government, I should have thought that would be the least we could expect.

Baroness Hamwee

My Lords, my noble friend is absolutely right. I should make clear that in speaking to my amendment to that tabled by the Government, I stated that I opposed the government amendment as it stood. My amendment is a bit of "tweaking". Frankly, I would rather not see this clause in the form in which it is proposed.

This is a subject to which we must return. The Government are badly letting down local communities and local government. The reputation of local government will not be enhanced by allowing private decision making, which has done so much in the past to bring down the reputation of local government in the eyes of the public.

I return to Amendment No. 39 and with considerable reluctance—I doubt that there are enough people present to vote on the matter—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 and 41 not moved.]

Lord Whitty moved Amendment No. 42: Leave out Clause 20 and insert the following new clause—

ACCESS TO INFORMATION ETC

(" .—(1) Meetings of a local authority executive, or a committee of such an executive, are to be open to the public or held in private.

(2) Subject to regulations under subsection (9), it is for a local authority executive to decide which of its meetings, and which of the meetings of any committee of the executive, are to be open to the public and which of those meetings are to be held in private.

(3) A written record must be kept of prescribed decisions made at meetings of local authorities executives, or committees of such executives, which are held in private.

(4) A written record must be kept of prescribed decisions made by individual members of local authority executives.

(5) Written records under subsection (3) or (4) must include reasons for the decisions to which they relate.

(6) Written records under subsections (3) and (4), together with such reports, background papers or other documents as may be prescribed, must be made available to members of the public in accordance with regulations made by the Secretary of State.

(7) Regulations under subsection (6) may make provision for or in connection with preventing the whole or part of any record or document containing prescribed information from being made available to members of the public.

(8) The Secretary of State may by regulations make provision—

1. (a) with respect to the access of the public to meetings of joint committees, or sub-committees of such committees, at which decisions are made in connection with the discharge of functions which are the responsibility of executives (including provision enabling such meetings to be held in private),
2. (b) for or in connection with requiring written records to be kept of decisions made at meetings which by virtue of paragraph (a) are held in private,
3. (c) for or in connection with requiring written records falling within paragraph (b) to include reasons,
4. (d) for or in connection with requiring any such written records to be made available to members of the public,
5. (e) for or in connection with requiring documents connected with decisions to which any such written records relate to be made available to members of the public.

(9) The Secretary of State may by regulations make provision—

1. (a) as to the circumstances in which the whole or part of the proceedings at meetings mentioned in subsection (2) are to be held in private,
2. (b) with respect to the information which is to be included in written records kept by virtue of this section.
3. (c) with respect to the reasons which are to be included in any such written records.
4. (d) with respect to the persons who are to produce, keep or make available any such written records.
5. (e) for or in connection with requiring any such written records to be made available to members of local authorities or to overview and scrutiny committees or sub-committees.
6. (f) for or in connection with requiring documents connected with decisions to which any such written records relate to be made available to members of local authorities or to overview and scrutiny committees or sub-committees,
7. (g) for or in connection with requiring information to be made available by electronic means.
8. (h) for or in connection with conferring rights on members of the public, members of local authorities or overview and scrutiny committees or sub-committees in relation to records or documents.
9. (i) for or in connection with the creation of offences in respect of any rights or requirements conferred or imposed by virtue of this section.

(10) In this section— joint committee" means a joint committee falling within section 101(5)(a) of the Local Government Act 1972, prescribed" means prescribed by regulations made by the Secretary of State.").

[Amendments Nos. 43 and 44, as amendments to Amendment No. 42, not moved.]

On Question, Amendment No. 42 agreed to.

Baroness Farrington of Ribbleton

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at eleven o'clock.