Local Government Bill [H.L.]

HL Deb 25 January 2000 vol 608 cc1502-46

8.39 p.m.

House again in Committee on Clause 5.

Lord Dixon-Smith moved Amendment No. 46: Page3, line 15, at end insert— ("( ) Before exercising the power under this section the Secretary of State shall consult representatives of local government and such other persons as he considers appropriate.").

The noble Lord said: I note that we are all in a hurry this evening. Amendment No. 46 requires the Secretary of State to consult local government representatives and appropriate people so that the consultation is open and wide.

Clause 5 states that, if the Secretary of State thinks that an enactment … prevents or obstructs local authorities from exercising their power … he may by order"— here we enter once again into the business of ministerial orders— amend, repeal or revoke that enactment". The amendment simply requires the Secretary of State to consult with representatives of local government. Proper consultation is a two-way stream of information, and that is always helpful. It is very useful if local government is able to make a contribution before the Secretary of State begins exercising his power.

If we have joined-up government, we must recognise the reality that local government is a part of government. Whatever the politics of the situation, local government is in many ways the executive arm of government at local level. That has long been the situation. The amendment would strengthen the ability of the Secretary of State in making these regulations.

The amendment is grouped with Amendment No. 54. The Secretary of State is enabled to consult people who "appear to him to be likely" to be able to make a contribution. But such phrases as "appear to him to be likely" would seem to make the question of consultation optional. We do not believe that consultation should be optional: the Secretary of State should be obliged to consult. That being so, we have tabled Amendment No. 54. These proposals are in the interest of good governance.

Whether the Minister is prepared to accept the amendments is a moot point. He may assure me that the Government would, as good governments do, always consult and that they do not need telling, just as good local government does not need telling to consult its neighbours, and so on. But the trouble with legislation is that it invites people like myself to think about motivations and about the reasons behind the wording on the face of the Bill, and to think how the content of the Bill might be improved. We believe that both these amendments would strengthen the Bill and that there is therefore a case for the Minister to answer. I have no doubt that he will attempt to explain away my doubts and concerns, and I shall listen with care to his reply. However, we believe that the two amendments would improve the Bill. I beg to move.

Lord Whitty

I agree that the Secretary of State should consult such representatives of local authorities and such other persons as appear likely to be affected by any of the actions that he takes under the powers in Clause 5. That is why the Government have already made provision for such consultation to take place as part of the detailed scrutiny procedures set out in Clause 8. Clause 8(1) specifically requires the Secretary of State, before bringing forward an order under either this clause or Clause 6, to consult local authorities, local government bodies and any other persons likely to be affected.

We have already debated in the context of earlier clauses the issues raised by the noble Lord's second amendment. I reiterate that we want to ensure that all relevant bodies are consulted on any proposals that are likely to affect them. Clause 8(1) will indeed ensure that that happens, while for practical purposes maintaining a sensible level of discretion for the Secretary of State.

I would add that Amendment No. 54 would have the effect of reducing the range of bodies that the Secretary of State would be required to consult. It would exclude all bodies other than those clearly affected by the proposals; whereas Clause 8(1) goes further, in that it includes also those bodies that are "likely to be affected". That being the case, I am sure the noble Lord will agree that his objective is already covered in the Bill and that he will not press the amendments.

Lord Dixon-Smith

I am pleased to hear the Minister's explanation, which I shall study with care. If I need to return to the matter, there are two remaining stages of the Bill when I shall have the opportunity to do so. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Dixon-Smith moved Amendment No. 47: Page 3, line 15, at end insert— ("( ) If local authorities consider that an enactment (whenever passed or made) prevents or obstructs them from exercising their power under section 2(1) they may apply to the Secretary of State for that enactment to he amended, repealed or revoked.").

The noble Lord said: this amendment is slightly different. It is the amendment I referred to earlier and is the reason why I withdrew a previous amendment.

The Bill appears to assume that the initiative is all on one side. However, local authorities have to deal with the consequences of all government legislation. They may well find that a point of existing legislation causes them some difficulties in relation to the operation of Clause 2(1). The purpose of the amendment is to enable authorities in that particular situation to apply to the Secretary of State in order to have the point that causes them difficulty at any rate considered for amendment or repeal.

This is a worthwhile provision. The Minister may say in his response that that is what he intends shall happen. But if it is what he intends shall happen, there is no reason why it should not be on the face of the Bill. If it is not what he intends shall happen, we may see something different.

Amendment No. 47 raises a point which I hope the Minister will consider seriously. If he does not like the wording, he might consider whether some other wording is suitable or whether he would choose to deal with the matter in the huge compendium of regulations that we are not yet in a position to consider.

Amendment No. 53 follows exactly the same line. It seeks to insert a new sub-paragraph, (c), stating that the Secretary of State may act upon the application of, and justification by, a particular authority. Again, from the point of view of local government such a provision would be worth while. It would also be worth while from the point of view of governance generally. Respect for local authorities would be considerably enhanced if it was felt that they were in a position to take the initiative in this way.

These two amendments raise a very serious issue. It would give me the greatest pleasure if the Minister could at least utter some conciliatory words, even if he was unable to accept the wording of this amendment. The Government are immensely wise but not infinitely wise. If they were infinitely wise I should not need to table these amendments. While I recognise the general proposition as to the wisdom of government, the principle behind these two amendments is worth serious consideration by the Government. I hope that in his response the Minister can give some encouragement, even if he does not like the precise way we have attempted to deal with the point. I beg to move.

Lord Whitty

I accept at least half of the noble Lord's observations about the wisdom of government. The Government intend that something similar to what the noble Lord indicates in the amendment should happen. In no way do we intend this to be a one-way process. We envisage that there will be initiatives within the framework set by local government itself both individually and collectively. The initiatives which already exist in this form—health action zones, the Local Government Association's commitment to regeneration and so forth—are examples of those cases where effectively local authorities already trigger these arrangements or propose that they join. A broad range of authorities, both urban and rural, will be involved in the process, and it is important that we make provision for such authorities to take the initiative. However, as the noble Lord anticipated, I am not convinced that we need to do so in precisely this way or that this is appropriate for the face of the Bill. Nevertheless, I shall consider what the noble Lord has said.

We envisage a rather different procedure whereby more informal arrangements are put in place so that, once the powers are in place, central and local government representatives can assess possible barriers on a regular basis. We have in mind making this matter a regular agenda item at central/local partnership meetings between senior local government people and Ministers. That will give local government collectively a way of looking at these measures. There is nothing in the legislation to prevent local authorities individually or as a group putting forward proposals that the Secretary of State should regulate or alter barriers under the powers in Clauses 5 and 6; indeed, we actively encourage them to do so.

In those circumstances, since there are a number of practical and slightly more informal ways to trigger this mechanism—we do not want to close any avenue—we see no great advantage in legislating in the way that the noble Lord proposes, although we fully accept the objective that he has spelt out.

Lord Dixon-Smith

I am delighted to hear the Minister's response to these two amendments, and I shall study his words with care. I note that he makes reference to informal arrangements. When considering legislation one is dealing with matters formally. It may be that what he says is satisfactory, but there is nothing like having something on the face of a Bill to ensure that it happens. However, I put aside my cynical tendency for the moment and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Baroness Hamwee moved Amendment No. 48: After Clause 5, insert the following new clause—

POWER TO AMEND OR REPEAL ENACTMENTS IN CONSEQUENCE OF SECTION 4 POWERS

(" .—(1) If the Secretary of State thinks that an enactment (whenever passed or made) or a requirement (whenever imposed) is unnecessary following the enactment of section 4, he shall by order amend, repeal, revoke or withdraw it.

(2) In this section "enactment" has the same meaning as in section 5(2) and "requirement" includes guidance and directions.").

The noble Baroness said: In moving Amendment No. 48, I should like to speak also to Amendment No. 51. As we have already discussed this evening, it is anticipated that the Clause 4 strategy will supersede a number of other plans and strategies. I hope that that will turn out to be the case, that the decks can be cleared and that there will be fewer detailed obligations on local authorities. Amendment No. 48 attempts to build on Clause 5. That clause enables the Secretary of State to amend, repeal or revoke enactments. Amendment No. 48 seeks to provide that, if he has addressed his mind to it and comes to the view that an enactment is unnecessary, he shall amend, repeal or revoke it, or, in the case of a requirement, withdraw it. This is the positive side of the coin whose reverse is the permissive provision in Clause 5.

Clause 6, which Amendment No. 51 seeks to amend, deals with the modification of enactments which apply to local authorities. I may well be told by the Minister that it is outside the scope of the Long Title to extend this provision to public bodies. Nevertheless, I believe that it is worth floating. The power of community planning is based on a partnership of all the relevant entities or, to adopt jargon less often used these days, stakeholders. The exercise of the powers in Clause 6(1) could be a great incentive for a range of entities to join a partnership. The prospect of bureaucratic requirements for the production of plans being removed is a powerful incentive. It has been suggested to me that this provision should extend to other public bodies such as health authorities as well as to local authorities to improve the process and thereby, it is hoped, the strategy. I beg to move Amendment No. 48.

Lord Whitty

I understand the reasoning that the noble Baroness has explained. I am, however, slightly bemused by the fact that the noble Baroness, on behalf of the Liberal Democrat Benches, proposes two amendments which greatly widen the scope of the Secretary of State's powers in respect of all kinds of public bodies and require him always to exercise them. That seems to be slightly contrary to the tone of some of the contributions from both Front Benches opposite.

The noble Baroness is right in relation to Amendment No. 48, in that it would allow the Secretary of State to repeal or amend any unnecessary enactment. That seems to us to go beyond the scope of the Long Title of the Bill. Technically, since other statutory bodies may be party to community strategies—I understand the reasoning behind it—it would allow us to deal with legislation that related to them as well as to local authorities. The proposal greatly extends the Secretary of State's powers.

Similarly, I understand why the noble Baroness regards Amendment No. 51 as desirable. Certainly, we want local authorities to work with other statutory bodies, but this takes us into wider territory than we would wish to enter. It would be improper to make such amendments without first engaging in the kind of detailed consultation with those bodies that we have had with representatives of local government about the powers in Clauses 5 and 6.

We have not yet considered the implications of such a wide power. That does not mean that we are necessarily unsympathetic to aspects of this issue. Indeed, we have already consulted quite widely on amendments to the Deregulation and Contracting Out Act 1994 with particular reference to public authorities. We hope to bring forward. legislation later this Session which may deal with aspects of this matter.

However, the noble Baroness is too ambitious on the part of the Secretary of State. I suspect that in that regard she will not wish to pursue the amendment.

9 p.m

Baroness Hamwee

My ambition on the part of the Secretary of State was to revoke legislation. That is rather different from providing for the Secretary of State to make more impositions. I defend myself in that way.

I am glad to hear the Minister's remarks about considering extending the approach to other public bodies. The suggestion for the amendment came from the local government world. It is because of the experience of working with other public bodies in the partnership which the Government are promoting that the amendment appears desirable.

The Minister did not say that it was cheeky to seek to extend the provision, but I accept that it is somewhat cheeky to read over the provision to other public bodies. However, given that the amendment arises from experience in local government, it has relevance. To hear at later stages of the Bill about enabling other public bodies to work more easily with local government would be good.

I shall read what was said about Clauses 4 and 5 with regard to requiring the Secretary of State to revoke enactments, and so on. One has to consider those clauses together. I hope that we can look forward to the Government clearing the decks a good deal and reducing the amount of legislation which will apply to community leadership. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Power to modify enactments concerning plans etc.]:

[Amendment No. 49 not moved.]

Lord Whitty moved Amendment No. 50: Page3, line 20, after ("repeal") insert (", revoke").

On Question, amendment agreed to.

[Amendments Nos. 51 to 53 not moved.]

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8 [Procedure for orders under section 5 or 6]:

[Amendment No. 54 not moved.]

Lord Dixon-Smith moved Amendment No. 55: Page 4, line 26, at end insert ("working").

The noble Lord said: This amendment deals with the period for which an order lies before Parliament before it may be approved. It requires that the order may not be approved until the expiry of a period of 60 days beginning with the day on which the document was laid. I understand that in the context of legislation of this kind, 60 days excludes periods when Parliament is in recess or public holidays.

Amendment No. 55 requires the period to be 60 working days. We think that the slightly longer period would not sacrifice a great deal of time and might give more opportunity for proper, mature consideration of any orders brought forward under this part of the Bill.

Amendment No. 56 requires the Government not only to state what they have received as a consequence of consultation but also to give their decisions. In other words, if there are serious objections, they have to spell out why they have rejected those objections. There is less of a problem if the consultation reveals happy and universal agreement. That may happen on occasion; and I think that we would all be delighted and surprised if that were the case.

These two minor amendments are intended to be helpful to the Government, local government and anyone interested. I beg to move.

Baroness Farrington of Ribbleton

Clause 8 provides for the procedures to be followed by the Secretary of State in making orders under Clauses 5 and 6. Those powers are very wide-ranging and it is right that Parliament should properly scrutinise their use. The procedures to be followed are designed to ensure that. Parliament is provided with sufficient information about the purpose of the orders and the reaction of those who will be affected by them; and to allow Parliament time for proper consideration. They are modelled closely on the procedures adopted in the Local Government Act 1999 and the Deregulation and Contracting Out Act 1994.

Following consultation with local authorities, representatives of local government and other persons likely to be affected by the proposals, the Secretary of State is required to lay before Parliament a document explaining his proposals and setting them out in the form of a draft order. He must also provide details of the consultation exercise. Parliament has 60 days in which to consider this document after which the Secretary of State may formally lay an order.

Amendment No. 55 would change the period to "60 working days". Clause 8(4) makes clear that the period of 60 days does not include any time during which Parliament is dissolved, prorogued or adjourned for more than four days. The amendment would extend that period by effectively excluding weekends.

I have to say that it might have been easier to achieve the same effect by simply extending the period to 75 days. But the real point at issue is whether 60 days represents sufficient time for Parliament properly to scrutinise such proposals as are likely to be brought forward under Clauses 5 and 6. In the Government's view, it is. This House previously thought that 60 days was sufficient for orders brought forward under the Deregulation and Contracting Out Act and for orders that might in future be brought forward under Section 16 of the Local Government Act 1999. Like Clauses 5 and 6 of the Bill, those Acts allow for primary legislation to be amended by means of order. If 60 days were sufficient in those cases, we are not convinced that they should not be sufficient in this.

Amendment No. 56 would also require the Secretary of State to provide a response to any representations received during the 60-day period when he lays the final order. I can understand the noble Lord's concern to ensure that Parliament has as much information as possible when it is considering the final order. However, I believe that on this occasion his concerns are misplaced. I cannot conceive of a situation in which the Secretary of State, in providing details of the representations and any changes to the draft order, would not also explain why he had accepted or rejected those representations.

I hope that as I have been able to clarify the position the noble Lord will withdraw his Amendment No. 55 and not move Amendment No. 56.

Lord Dixon-Smith

I am grateful to the noble Baroness for her explanation, which goes a long way towards setting my mind at rest. I shall study what she said and hope that I need not return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56 not moved.]

Clause 8 agreed to.

[Amendment No. 57 not moved.]

Clause 9 [Executive arrangements]

Lord Dixon-Smith moved Amendment No. 58: Page 5, line 4, at beginning insert— ("( ) A local authority may make executive arrangements for the discharge of certain of its functions.").

The noble Lord said: With Clause 9 we move to a different part of the Bill which contains fundamental problems. It deals with arrangements with respect to executives. Clause 9 and those following require local authorities to change their system of management to one which complies with the systems established in Clause 10.

The European convention on local self-government, to which the Government signed up, also states that authorities shall be free to decide their own administrative arrangements. The convention requires something which this Bill denies. That is a serious point.

Amendment No. 58 is grouped with Amendments Nos. 61, 168 to 170, 177, 190 and 191. It suggests as a preamble to the clause: A local authority may make executive arrangements for the discharge of certain of its functions". It is not the Government's intention that all local government functions shall be dealt with by executive arrangements. They acknowledge that that would not be appropriate, which at least is the beginnings of progress. Our amendment specifically gives local authorities a power rather than a duty to comply with Clause 10.

If the amendment is agreed to, a local authority not putting in place executive arrangements would still be able to continue to discharge its functions and take its decisions in accordance with the relevant provisions of the Local Government Act 1972 and later legislation which has refined and defined that Act and which the Government do not propose to repeal.

In Clause 11 of the Bill, the Secretary of State is empowered to exclude certain functions from executive arrangements and to specify functions which at the discretion of the local authority could be subject to traditional arrangements. The amendment we propose provides further flexibility and discretion and is not a complete departure from the spirit of the Bill, although it is fundamentally important because the Bill as drafted makes the change to executive arrangements virtually compulsory. We submit that, particularly under the European convention, that should be a matter for local authorities to decide.

The Joint Committee which sat in consultation on the draft Bill was of the same view and was concerned about the over-prescriptive arrangements which the Bill makes. Curiously, the amendment is in line with the views of the Labour campaign for open local government, reported in the minutes of evidence of the Joint Committee at Appendix 27. This is therefore a fairly fundamental and important matter. I must say that if one reads what one receives from the Local Government Association, it certainly approves the principle behind the amendment.

We are back to issues that cover ground we have already debated. Are local authorities to be trusted and respected to do their job as they should? Do they have a view which has merit and deserves respect? Do their electorates have views which deserve merit and respect? Are electorates to be trusted? Maybe not, because they are local electorates. However, I remind the Minister that local electorates are also part of the national electorate. If they are not trusted in one regard, how can they be trusted in any other? There are serious implications in Part II of the Bill which merit the deepest consideration of all their aspects before we give way to what appears before us.

I do not believe that the Bill as drafted, which makes it virtually compulsory for local authorities to change their internal administrative arrangements, is a proper way of proceeding. I remember numerous occasions during my career in local government when government wished to see changes in local authorities' procedures and arrangements. They were not handled in this way. One of my first jobs in local government, way back in the late 1960s was to consider the implications of a Royal Commission on management services in local government. A small group of us worked in my authority as a result of that commission to see how we could streamline the authority's business and affairs. At the end of it, the chairman of the study group and I looked at each other and said, "We're a pair of asses—we've done ourselves out of a job!" And we had. The fact of the matter is that most local government members, given a task to do, will look at that task and study it objectively. If there is merit in it, they will do what is required.

It must be said that some local authorities see merit in the proposals suggested in Clause 10 and are already on the way to putting in place the structures required. That is as it should be. If those structures and procedures are so superior, it will not be long before the vast majority of local authorities follow. One does not need compulsory legislation to bring that about; still less does one need all the mechanisms of petitions, referenda and all the rest of it. That is simply not necessary.

I happen to believe that local government and local people are sensible. There are some merits in proposing a more streamlined executive system in local government, but I well remember that in my own authority, if the chips were down, there was a small group of six members, including members of all opposition parties, who could do almost anything on behalf of that authority. They could do it because they had the trust of the members of their groups and the general trust of the members of the council. And if they had to act in such a way, they could be confident that the council would back them. That is right. We did not call it a "cabinet"; we did not call it "executive arrangements" or anything else. But it worked, and that is in the structure of many years ago.

I remember occasions when that structure was able to act so quickly that, when necessary, it could do so considerably more rapidly than private industry. Some people criticise local government as being hidebound, committee-bound and always waiting for excuses not to do things. It is true that in an element of local government that attitude is not only the appearance but the reality. However, the truth is that good local government works, and works extremely well and extremely efficiently.

We tabled Amendment No. 58 because we do not believe that it is right that "executive arrangements" should be compelled on local government. We do not believe that that is the appropriate way to proceed. As I said, the other amendments flow from, and reinforce, this amendment, which makes the provision a power rather than a duty. I commend them to the Committee.

I believe that we are at a crux point with the difference in approach between this side of the Chamber now—I use the word "now" because unfortunately it was not always so with regard to local government—and the views of the Government. It is rather sad that this clause of the Bill is in this form. I wish that it were not. I believe that I have said everything that it is essential to say on this group of amendments. I beg to move.

Baroness Hamwee

I have tabled a similar amendment which is not grouped with these amendments but is to the same effect; that is, to allow local authorities to take the decision for themselves as to how they should best perform their functions. I shall consider later whether I wish to move that amendment. However, I support the thrust of what the noble Lord, Lord Dixon-Smith, said.

Later in the Bill we shall come to the effect of the particular executive arrangements which are on offer. It is quite a short menu. However, our particular objection to this narrow part of the Bill is the complete refusal—apparently almost a closed mind—on the part of the Government to listen to debate at local authority level and to heed the very real objections being made to the proposals which are to be imposed. I can understand the Government saying to themselves, "Well, if it's members and councillors who are objecting, they are just thinking about their own positions. They are not really concerned about the wider good or the real outcomes." I would not say that that is how most councillors approach matters, but I can see that a government, looking at an interest group, would say that that was the attitude. However that does not seem to me the end of the story. Local authorities have been talking—not every local authority but many local authorities—to their communities and reviewing how they should go about conducting their business. Camden is one recent example. That is not an authority of which I should expect the Government to say that they disapprove. They have recently awarded it Beacon status in two service areas—housing benefit administration and schools.

Ten days ago Camden passed a resolution, part of which referred to the major consultation exercise which it has conducted with the people of Camden, which showed that there was no majority for any of the Government's models, rejects the Government's proposals relating to the 'executive/scrutiny split' as set out in the Bill, on the grounds that they will reduce democracy, lessen effective decision-making and seriously weaken accountability". That was one of two resolutions passed that night to the same effect.

I am sad that we seem not to have a programme of piloting, of incremental change, of seeing how things work out other than that some authorities have—within the extent that it is possible under the law as it currently stands—put new arrangements into effect. It does not seem to me that other local authorities are yet in a position to assess the effect of those pilots, if they can be called that. The Government are seeking to leap straight into a narrow selection of possibilities because they know that those are the only possibilities which can be appropriate for the most enormous range of local authorities. Those local authorities have very different characteristics not only in terms of functions but also in relation to size, geographic and socio-economic demographic matters.

It is a great pity that having done such good work in Part I, the Government have now divided Members of this Chamber who wish the best for local government.

Lord Filkin

I agree strongly with the noble Lord, Lord Dixon-Smith, that this amendment is absolutely central to the debate about the Bill, although I differ from him as to the conclusion to be reached.

What is being proposed is a major opt-out clause for those local authorities which do not think it appropriate or necessary to change their structures. Perhaps I may touch on one or two reasons why I think that we cannot and should not support that.

First, it is a slight misinterpretation of the Council of Europe's charter of local self-government to imply that local authorities in the rest of Europe can choose the fundamental structures of their political arrangements. They cannot. They are either set within their constitutions or determined by federal or national governments. The local authorities in the different Lander in Germany cannot decide how they structure themselves. That is set by a higher authority for obvious reasons.

Secondly, the argument that is put that many local authorities are already embracing the need for change is true. It is impressively true on a cross-party basis. Authorities of all political complexions can be found to demonstrate acceptance of the need for change that emerged slowly following publication of the White Paper on local government modernisation and developed through the Bill piloted in the summer.

One cannot grossly generalise but there is a sign that many of the better authorities—I think of Herefordshire, Sutton, Kent and Hertfordshire—are already moving positively towards recognising that they want to, and will make, those changes. The thrust of the argument is that those not wishing to do so should be allowed that freedom. That is flawed. We are not talking about a situation where local government in England is seen as being in sound health, having strong public confidence and the confidence of the government of the day, whether the current Government or previous ones. That is not the case. There has been a major failure of confidence and leadership.

In the late 1980s, the Audit Commission pointed out that the way local authorities conducted their business through the committee system was long-winded and often a sham because decisions had been made elsewhere, led to virtually no scrutiny in practice, and was due for reform. That was revisited some six years later, and it found that nothing whatever had changed. I do not want to imply that all the local authorities that would opt out if the amendment of the noble Lord, Lord Dixon-Smith, were carried, are necessarily the most sleepy of hollows and the most in need of reform, but neither, from my direct experience, would I guarantee that the reverse is true.

It is not as if this is an unannounced form of change. A lot of preparation has taken place in relation to this change and, as we shall debate later, there is considerable scope for variation. The current law only allows one option. The legislation, if passed, will allow for a substantial increase in the number of options that, in practice, will be available to local authorities. Therefore, if we as a Committee are in favour of a strengthened system of local government, with stronger scrutiny and no longer having decision-making taking place in a sham system but in one in which decisions are properly challenged through a vigorous process, we must not allow opt-outs to take place in the way proposed.

Lord Hanningfield

I speak in support of the amendment tabled by my noble friend Lord Dixon-Smith and in support of what the noble Baroness, Lady Hamwee, has said. Come this May I shall have been in local government for 30 years—in a large authority, Essex County Council, as was my noble friend Lord Dixon-Smith, so we have something in common.

During that time, the situation has changed immensely. The structure or the processes in Essex are nothing like they were 30 years ago. Every two or three years we have changed our structures and we have looked at our committee system. We have tried to speed up our decision-making. I would be one of the first to admit that sometimes in local government we are not quick enough in coming to conclusions or decisions. Often that is because we want to discuss matters and to consult the public further. In local democracy there is nothing wrong with that.

I am concerned about the executive arrangements. Since the White Paper was published, I have looked at several other systems throughout the world. There are several such executive models. I have looked at New Zealand and the United States and I know a lot about what happens in Europe. Where there is an executive system, there are fewer councillors. In Essex we have 79 councillors, all with large electorates. My own electorate comprises nearly 20,000 people which is almost as big as some parliamentary electorates. To have an executive of 10 would perhaps mean that the other 69 could have a scrutiny role, but they would not have an effective role in running the county council. That is just not on!

The United States has executive arrangements. Fairfax County, south of Washington, is similar to Essex. It has over 1 million people and a budget similar to that of Essex County Council. It has an executive, but only 11 elected members form the executive. That system works well for that county in the United States.

New Zealand has elected mayors. There is an elected mayor in Auckland which is a city of over 1 million people, but there are 18 elected members. The system works well in that kind of area. To say that 10 members will form the executive will not work in a large local authority like Essex County Council where 79 members, with large constituencies, play a prominent role in making decisions in the county.

As the noble Baroness, Lady Hamwee, said the geographical situations of councils can be so different. Essex has an elect orate of 1.5 million, but large rural districts in Northumberland have far fewer people. How can it be said that there should be one or two systems for those different situations? It would be most restrictive. I disagree totally with the noble Lord, Lord Filkin, that there would be more options. We have many options now. We have, as we should have, a diverse system of focal government.

I support elected mayors. I am in favour of elected mayors—if people want them—as I believe that they provide a good system. I also support an executive where appropriate. However, in certain places it is just not appropriate, so we need another option.

As vice-chairman of the LGA, which is all-party, I travel around the country all the time, and I have never found as much unhappiness and unease as I have about the description of the executive system—the cabinet system—in authorities that do not want it. The Government have to give a bit. They should not alienate all local government members. I urge the Government to think again and to accept the amendment.

Baroness Hanham

I support my noble friend's amendment. I have a number of major concerns about what is proposed for the executive system, but the one that is most relevant—it follows on even after I look at the guidance produced—is the fact that most of the decisions made in local government under the executive system will be made by one party, and made in secret. There is no way of getting round that. The power is there for the executive—indeed, it is almost a diktat—to allow decisions to be taken by individual members, in private, and those views will only be able to be scrutinised by the scrutiny committee if it is able to call in those decisions before they have been implemented.

There have been suggestions that in the current system councillors are not really making decisions at all. But is that correct? At the moment we have a committee system 'whereby all councillors are involved in some way or another in making—some would say in rubber-stamping in some councils—decisions in the open. If the public decide to come to those meetings, they can do so and see how and when those decisions are made and what is said. That will not happen. It does not happen everywhere. It does not happen now where those executive arrangements have already been implemented. I believe it was Widdicombe who changed the system whereby decisions could be taken in secret and said that they had to be taken as far as possible in the open. We have all followed that advice ever since.

This is a major problem in relation to the executive system. As my noble friend Lord Hanningfield said, to leave a small number of councillors, perhaps only one-fifth of those on the council, doing all the major work and taking all the major decisions, is not an option that we should allow to be carried through without thinking about alternatives. No system will be perfect. Indeed, the Government said that this system is not perfect, and that is why these amendments are being put forward. But let us not throw the baby out with the bath water; do not let us end up with a system of local government that people do not want to join.

Baroness Miller of Chilthorne Domer

Members of the Committee have spoken eloquently as to why this Bill is a divisive Bill in relation to local councils. It is divisive because what is being proposed is a false split. The noble Lord, Lord Hanningfield, said that few councillors will be taking decisions. But in authorities that presently work well, councillors sometimes play a senior role and take the chair in one matter and in another play a more back-bench role.

The amendment will preclude an easy movement for any councillor between those roles. Though we have heard a great deal as to how the system will increase the representational role, there is not yet any evidence of that happening. I am an optimist and believe it may happen. But it is extremely regrettable that we have been presented with a model which will place those representational councillors in what may be seen as a second-class role, though the Government are promoting the matter in a different way.

The noble Lord, Lord Filkin, said the fact that many local authorities have already gone down this road is an indication that they are keen on this model. I think it is more likely that they are keen on embracing change and that they do not want to be seen to be stagnating. However, until this Bill is passed, they are able to experiment with change in a way that they want; indeed, they may do so in an incremental way, as my noble friend Lady Hamwee said.

As the noble Baroness, Lady Hanham, pointed out, unless we have PR for local government, this will encourage the one-party state that can meet in secret, behind closed doors. It seems incomprehensible to me that we could be moving from something that was supposed to open up local government and to allow more consultation to a model that allows a one-party cabinet to meet behind closed doors.

We have talked a good deal about councillors in this debate. Many worries have been expressed by officers about this model. They feel that they will be put under a similar strain and that they will be asked to fulfil the almost impossible task of supporting both the executive and the scrutiny roles at the same time. Therefore, because no council will be able to afford or want to employ a duplicate staff, it is likely that those officers will one day have to wear one hat and the next day wear another.

It is true that the best of officers have always maintained a scrupulous ability to be impartial and offer the appropriate advice in each position. But because of the way that this model so starkly divides councillors, I believe that more and more of a strain is likely to be imposed on officers working within the system. It is regrettable that models have been laid down in so very precise a form. As we move into some of the detail and begin to look at the regulations controlling the way in which scrutiny and executive will work with area committees, we shall begin to see some of the great difficulties that these particularly strict proposals will produce.

The Earl of Carnarvon

I should like to pick up the point in relation to the independence of local authorities which will find this a very difficult situation. There are a large number of them—two borough councils, eight district councils and two county councils, as well as the City of London. They are not at all happy with the idea of an executive, especially one comprising 10 people. I wonder about this astonishing view of the Government that it has to be 10 people when there are authorities like Birmingham with 117 councillors, Bradford with 90, Leeds with 99, Liverpool with 100 and Manchester with 100, which is well known to the noble Lord, Lord Smith. It will not allow the other parties to be represented at the centre of things, and that is something which I believe has been very important in the whole of my life in local government. There might have been a majority of the majority party, but Liberal, Labour, Conservative and independents were all members of the executive of Hampshire County Council.

I am talking about Hampshire County Council when it had well over 100 members and was even bigger than Essex. We always had a situation where all parties were represented on what in those days we would have called "executive committees" such as are now envisaged. Ten members is much too small. I have tabled two amendments but I do not know whether we shall reach that stage this evening. I want to underline the worry that has been expressed to me by the county councils that are independent. They are extremely worried about being made to have an executive in the way outlined in the Bill.

Lord Woolmer of Leeds

In expressing some disagreement with the amendment as moved, perhaps I may reflect a little upon my experience, which is not entirely the same as that of noble Lords opposite. In Leeds they have already moved to the system that is now being put forward in a legislative manner. The executive was established with members of the opposition within it. The legislation as formulated entirely permits that. It simply is not the case that there must be a one-party executive.

If anything is demonstrated by the experience to date, it is that in different circumstances people still have a lot to learn. It is difficult for opposition members to stop acting as opposition members and to form a collective executive. Therefore there are problems in these areas. Leeds, which is one of the larger cities in this country, has demonstrated its willingness to experiment and not to be dogmatic or ideological in this matter but to seek the best outcome for its inhabitants.

The impression has been given that the mayors or executives that we are discussing would be extremely strong and dictatorial. In the guidance notes that the Government have provided, Members of the Committee will have noted that a distinction—this is not phrased in language that I would have chosen to use—is made between a strong leader and a weak leader. That is not an entirely fortunate use of words, as the so-called "weak leader" would be a leader determined by the council as a whole. The executive membership can be determined by the council as a whole and can be removed by the council as a whole. In other words, the formats that are possible under the legislation are much more varied than may have been indicated.

Like many others who are present this evening, I have had many years' experience of large city politics. I see a richness of provision in this area which is capable of dealing with a variety of situations. When the noble Lord reflects on whether to test the opinion of the Committee on the amendment, I ask him to recognise that there is far more richness of provision in this area than may appear to be the case.

9.45 p.m.

Lord Whitty

The noble Lord, Lord Dixon-Smith, is right to say that this is an important part of the Bill. We have heard a variety of views expressed in this Chamber and have heard a variety of experiences of Members of the Committee and of local government as a whole. That highlights the importance of the revolution in local government which this Bill hopes to bring about.

The aim of all the amendments in this group is to make the move to executive arrangements optional; in other words—as my noble friend Lord Filkin said—to provide an opt-out so that local authorities could opt for the status quo.The noble Lord, Lord Dixon-Smith, said that that was contrary to the European charter of local self-government. We do not believe that to be the case. Indeed, as my noble friend Lord Filkin also said, it is clear that the constitutional structure of local authorities is determined by statute or constitution in all countries. The administrative arrangements are another matter.

The constitutional arrangements that we propose here provide not only three different models but many varieties within those different models. That contrasts dramatically with the previous situation that had existed for many decades; namely, a single system, constitutionally speaking, with no option. We are therefore providing a wider option than exists at present. We are also providing an option which we believe allows local authorities to tackle the kind of difficult modern problems that confront them.

The noble Lord, Lord Dixon-Smith, is correct to say that even under the old system many councils moved towards a system which constituted, de facto, pretty much an executive council well before they were stimulated to do so by the knowledge that this Bill was to be produced. Far more have done so since they learnt that this Bill was to be produced. However, they have done so despite the constraints of the old system. I was interested to hear the noble Lord, Lord Dixon-Smith, say that in many councils the committee system and the old structure inhibited change and the reaching of decisions and inhibited their—although he did not quite use the term—modernisation to cope with the problems of the modern world.

The Government in no way believe that one form of executive decision making will be necessarily appropriate or desired across the board. That is the current situation and clearly the lack of choice is imperfect. The committee system—which may well have had its merits 100 years ago—was established to involve all interests in decision making, all on an equal basis. That has in the end, in effect, become a fairly opaque system and a constraint cm clear decision making.

The noble Baroness, Lady Hanham, suggests that the reality is that under this system we shall have one party making decisions in private. I believe that in many parts of the country—and, frankly, in parties on all sides of the House—that has been very much the situation in the past. The public have not had a clear, transparent and accountable system of government and it is not correct to pretend that they have. Councillors have not all been equal. Many of them have spent a lot of time on committees dealing with decisions which have already been taken elsewhere. Even councillors in a majority group may have little influence over decisions, and yet they are required to explain the actions of the council to the people they represent as if they were effectively executively responsible for them.

Nor has there been much of a push within councils to provide for clear political leadership within their structures. That is not a reflection on the quality of council members or of council leaders—to return to an earlier discussion which was picked up by the noble Baroness, Lady Miller of Chilthorne Domer—but is caused by the structures under which they operate. The current system does not serve to provide accountability; it does not serve to provide innovation; it does not serve to provide speed and effectiveness of decision making; arid it does not serve to provide the transparency necessary for the real exercise of democracy.

That is why we do not wish to maintain the status quo.. We believe that we need to move away from the status quo to a new form of government which rests on transparency; where it is clear where the decisions are taken, who takes them and who is accountable for them; and which, at the same time, allows the electorate, the population of the local authority, to be represented by councillors in questioning and in effective scrutiny of that executive system.

The Government have brought forward the Bill because we believe that all councils have to face up to this change. We do not believe that the status quo is serving the populations whom those councils represent. To be fair to the noble Lord, Lord Dixon-Smith, it was implicit in some of his comments that those councils which are least inclined to change the status quo under the old system, and which are least inclined to move on a voluntary basis, would fairly obviously be the same councils which would choose the status quo option were there to be one.

These arrangements are designed to enable councils to adopt the executive arrangements they wish within the overall structure. That structure is not—as was alleged—a false split. It is a division of the council which indicates where responsibility lies. We want to see local government which is responsive to its people and to produce councils which will do—and will be seen to be doing—what the local community wishes.

A key feature of our proposals is that authorities, in reaching their choice of structures, will consult widely with the local people and other stakeholders on their proposals. It is clearly not true that the options are narrow. Councils, even if they choose one of the three options, do not have a tight and structured option to which they have to stick absolutely. My noble friend Lord Woolmer spelled out the way in which Leeds, for example, is choosing to interpret the models we have presented. In that particular case—and in any other case—there is a possibility of involving members of more than one party in the structure of decision making. Under the present system where there is a majority in the council, that very rarely, if ever, happens.

I understand the genuine anxieties which have been expressed that opposition parties, independents or particular parts of the local authority would not be effectively represented in the decision-making structure. But that ignores the fact that the roles we are giving to non-executive councillors are much enhanced; they have a higher status and the provisions for scrutiny are much more effective than the present committee structure, where, in effect, all councillors on committees are party to the executive decisions and share the responsibility and accountability for those executive decisions.

In our approach there are two key differences and benefits. First, because of the provisions we propose in relation to consultation, involving the detailed provisions in the Bill relating to petitions and referendums, councils will know that they are governing through structures and constitutions that will, clearly and recently, have received public support. Secondly, whatever form the executive arrangements take, people will also know, from that point, who is taking decisions. Those decision takers will be subject to rigorous arrangements for the overview and scrutiny of the executive, providing greater transparency and accountability.

I repeat, it is a fallacy to say that those councillors who are outside the executive will have no role. Indeed, under the new structure, all councillors will have an enhanced role.

I shall not go into detail on the range of amendments tabled by the noble Lord, Lord Dixon-Smith. I recognise that he has raised a fundamental point, but I hope that he will consider the arguments that I have put to him and also consider the experience of my noble friend Lord Filkin, who has long experience of local government from a somewhat different perspective from that of many other noble Lords. The noble Lord should also consider the fact that the range of options within the three options has been and is being considered by local councils. Those provisions give enormous flexibility as to exactly how an individual council can implement its decisions so that they are appropriate to that particular form of council, whether it be a county council, a district council, an urban or a rural area. Clearly, many different patterns will emerge from this structure.

However, it would be wrong for the Government to allow councils that have failed to modernise themselves to take a further option of opting out of this process. It is important that every council and the electorates of every council have the opportunity to move to the new structure and to be able to comment and consult upon the exact form a local council will take.

No doubt as the Bill progresses through the House we shall return to the matters that have been raised tonight. However, having aired many of our differences, I hope that the amendments will not be pressed. Should noble Lords wish to take my words into account, no doubt they will wish to return to these issues at later stages. A difference of option exists here, but I hope that I have convinced at least some Members of the Committee that our proposals to avoid the option of a status quo have some merit.

Lord Hunt of Tanworth

Before the Minister sits down, perhaps I may ask him one question. I very much agree with the words of the noble Lord, Lord Filkin, concerning the right of the Government to prescribe the form of local government. After all, in the committee system itself the requirements for political balance and so forth are enshrined in legislation. Furthermore, I cannot join the school of thought that says, "Let all the flowers bloom" and allow a council to set up any arrangement that it thinks best. Powerful arguments have been advanced that the executive/scrutiny split will probably provide, in most cases, the best balance of transparency, efficiency and accountability.

However, what appears to worry many people is the fact that in a relatively few cases—whether because councils are of an independent composition or they are small—it may well not suit their circumstances. The Bill provides that the Secretary of State can approve other models. However, as I understand it—although this is not in the Bill—the intention is not to approve any model which does not involve that split. Can the Minister say whether my understanding is correct and whether there is a measure of flexibility on this? I believe that it is crucial to say explicitly that the three models are in place, that it is possible to look at others, but not if it does not involve the executive split, which might not be suitable for some councils.

Lord Whitty

The noble Lord, Lord Hunt, has given a correct exposition of the case. The Government believe that there is wide scope for different balances within the executive structures that we have proposed. As the noble Lord said, we are prepared to consider further models and we shall be open-minded towards proposals for further categories, but with a structure of executives. We do believe that that is the sine qua non of the kind of structures that are necessary for local authorities in the 21st century. Therefore, we are open to other proposals within and outside the three models, but the executive structure is important to us and we believe that it is important to local government.

10 p.m.

Lord Dixon-Smith

We have had a most interesting debate. I am grateful to those who have taken part in it. I shall run through what seem to me to be some of the salient points, because this is truly one of the crunch points in our debate on the Bill.

The noble Baroness, Lady Hamwee, was generous in her support for the principle of the amendments. I suspect that she and I could debate the detail for some time. The fact of the matter is that we come down on the same side of the fence—that is, essentially against the Government. The noble Baroness said that there have been some particularly successful pilot schemes. It is good to acknowledge that, but pilot schemes of volunteers have been moving in this direction anyway. I am grateful to the noble Baroness for all the points that she made.

The noble Lord, Lord Filkin, rightly said that local government is not in particularly sound health; nor does it enjoy strong public confidence. That is an immensely sad fact. I regret it, but it is something we all have to live with. I have to say—I say it with immense regret—that those who have done most to erode public confidence in local government have been in central Government. Again I ascribe no political blame for that; but nothing in the Bill will remove that. That is sad.

My noble friend Lord Hanningfield mentioned the changes that are already taking place. Indeed, authorities of all political persuasions are moving in the direction in which the Government would like to see local government move. They do not need legislation if there is merit in the proposals. That is a reality. When you come to compare what we do in this country with what is done in other countries, it is as well to remember that that comparison must include the totality of the systems that exist abroad. The fact of the matter is that in other countries there are far fewer members in all major authorities. I once went to Essex County in Massachusetts. It was a very interesting experience. There were five county commissioners. In order to be a county commissioner in Essex, Massachusetts, you had to have 10,000 signatures on your nomination paper. That was a little political device by the Democratic Party to keep out the Republicans. I had some very interesting discussions with the first Republican Member who managed to achieve that target and be elected. But the systems are not always what they appear to be.

The noble Baroness, Lady Miller of Chilthorne Domer, mentioned two points. She referred to councillors' fear of this enforced change. She may well be right to suggest that it is a disincentive to stand for election. She is also right to mention the possibility, not to say probability, that this will impose considerable strain on the allegiance, loyalty and, indeed, enthusiasm of officers. That is particularly so in smaller authorities where the staff is not sufficiently large to permit the easy building of "Chinese walls" between the executive function and the function of oversight and supervision.

The noble Earl, Lord Carnarvon, mentioned the views of independents who, likewise, are concerned about their prospects. Unlike national government, with the exception of this House, they are a rare and special commodity. If the independents are concerned, we should be concerned.

My noble friend Lady Hanham gave me general support. My noble friend is concerned about the impact the provision will have on both the members and staff of authorities. The noble Lord, Lord Woolmer of Leeds, made a most interesting point. He said that opposition members are always opposition members. That is sad but true. I remember impassioned argument with the previous government behind closed doors—trying to tell them that that was a fact of life. Noble Lords sitting opposite would do well to remember that. There was a time when all three local government associations, as they then existed, were under Conservative control. If one looks at the pattern of results in local government elections, we are moving in that direction. That is a political reality. The political reality is that this country deals in participative democracy.

The noble Lord, Lord Hunt of Tanworth, expressed concern about the Government's approach, which appears to be that one size fits all—or all three sizes fit all. I am not sure whether that is appropriate. In his remarks the Minister acknowledged that there is room for tweaking at the edges as long as it is within an executive system so that there will perhaps be a number of variations on a theme. Of course, the criticisms of the existing system are valid. They are valid because local authorities vary immensely across the country. Some are good; some are less good; some are not good; and some are probably something worse than that. But we are talking about human organisations. We are talking about people. If we in this Chamber are all good, we are extremely fortunate. Some of us are good; some of us will be less good; and some of us will certainly be less good than that. That is the nature of mankind.

What concerns me about the Minister's remarks is that he did not say why we need to compel this revolution. There was a revolution in 1917 in another country. It had painful effects both in the short-term and in the long-term. That, of course, has nothing to do with the Bill. However, when one sets about compelling change, the law of unforeseen consequences usually comes into play. We do not know what the law of unforeseen consequences will do as a result of this part of the Bill. Evolution would be better than revolution. The Minister hinted at it in his response, but he did not say that he would accept the theory of evolution, even though it may receive general scientific acceptance nowadays in a somewhat different context.

We have had an interesting debate. I do not intend to take up the Committee's time further except to say that this is a matter to which we shall undoubtedly have to return. I do not think that there will be any ducking of the issue. I am grateful to the Minister for his reply. It helps us to be informed in our response to the debate. I am sure that there will he a further response. However, the Minister will be glad to hear that it will not come tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 59: Page 5, line 6, leave out from ("authority") to end of line 7 and insert (", and (b) under which certain functions of the authority are the responsibility of the executive. (2) Executive arrangements by a local authority must conform with any provisions made by or under this Part which relate to such arrangements.").

The noble Lord said: In moving this amendment, I shall refer to the large number of other amendments in my name in this group. The amendments make provision on the definition, construction and detailed operation of the executive arrangements and the public availability of the details as part of the council's constitution.

Amendment No. 59 clarifies the meaning of "executive arrangements". Amendment No. 237 introduces a new clause requiring an authority that is operating executive arrangements to maintain a copy of its constitution available for inspection. Amendments Nos. 62, 63, 66, 76, 153, 157 and 158 are intended to improve the Bill by providing clearer labels for the different types of executive provided for in Clause 10 and using those labels in later provisions of this part of the Bill for the sake of consistency.

Amendment No. 82 provides that only the full council may discharge certain functions. These are: the election of the leader of the authority in the leader and cabinet form of constitution; the appointment of the other members of the executive in those authorities where these appointments are made by the council rather than the leader in that form of constitution; and the appointment of the council manager in the mayor and council manager form of constitution. Amendments Nos. 261 and 262 are technical.

Amendments Nos. 154, 155, 156, 159, 160, 161 and 162 provide for an elected mayor to appoint a deputy mayor who must be (and continue to be) a member of the authority. The mayor may bring to an end the appointment of a deputy mayor and appoint a replacement at any time. The deputy mayor will act in the place of the elected mayor if that post becomes vacant. In the case where the mayor and the cabinet form an executive, the whole executive will act in their place and arrange for representation in the mayor's place or on any bodies on which he or she was a member on behalf of the authority. In the case of the mayor and council manager form of executive, the council manager will act in the mayor's place.

Amendment No. 242 provides that where an elected mayor is a councillor of his or her authority, the circumstances of his absence will be short-lived. If the post of elected mayor is vacant, there should, under the existing law as it relates to councillors, be a by-election unless the next normal election is due within the next six months. Amendment No. 242 also has the wider effect of bringing elected mayors within the legislation on allowances.

Amendment No. 165 makes provision for a political assistant for a directly elected mayor. Amendments Nos. 163 and 164 clarify the rights of the council manager to attend and speak at meetings.

Amendment No. 238 makes it clear that the statutory guidance that may be issued by the Secretary of State under Clause 24 can apply to any provision in, or made under, Part II of the Bill.

All of these amendments spell out the Bill's general approach and do not raise many new issues. If noble Lords have any questions on the amendments I hope that I can respond to them. There are a number of other amendments to which I shall refer when I wind up the debate. I beg to move.

10.15 p.m.

Baroness Hamwee

I have a lone amendment in this group, Amendment No. 240, which seeks clarification of a point that I have raised already this evening. Clause 24 provides for guidance—what a surprise!—and under subsection (3) that guidance may make different provision for different cases or descriptions of local authority". Amendment No. 240 seeks to replace "cases or descriptions" with "categories" for reasons that I have already given; namely, that for the purposes of parliamentary drafting "categories" is accepted as a clear term in this situation. I wondered what a different case of local authority might be.

I should like to put to the Minister a question the answer to which I should perhaps know already. In Amendment No. 242 provision is made for the elected mayor to be treated as a member and councillor of the authority. Can the noble Lord explain to the Committee the difference between a member and a councillor? I have used those terms interchangeably and I must have been wrong all these years.

Lord Dixon-Smith

I apologise for not rising earlier. I thought that the Minister would rise to answer the question just put. My Amendment No. 239 is in this group and deals with a very small point in Clause 24, which provides that: (1) A local authority must have regard to any guidance for the time being issued by the Secretary of State … (2) The provision which may be included in guidance under this section includes, in particular, provision with respect to— (a) the time within which local authorities must draw up proposals under section 18". We believe that "must" should be "may" and that we are back in the business of compulsion versus responsible optional action.

This is a very simple little amendment. I shall not take up any further time other than to state what the amendment seeks to do and why it is there. I hope that the amendment will attract the Minister's attention and sympathy, although on current form he is not in the most sympathetic mood this evening.

Lord Whitty

If the noble Lord finds me unsympathetic towards this little amendment it is because Amendment No. 238 in this group would, if accepted by the Committee, delete the subsection to which his amendment applies. Therefore, there would be a certain illogicality in my accepting it. However, if Amendment No. 238 were to be rejected by the Committee I would oppose the noble Lord's amendment. As the noble Lord implies, effectively this is a return to a degree of voluntarism which ensures that there is a method by which local authorities may not draw up proposals after a certain date; in other words, if the deadline is removed they do not have to comply with the legislation. We are not prepared to allow that loophole.

In relation to Amendment No. 240 tabled by the noble Baroness, Lady Hamwee, Clause 24(3) gives the Secretary of State power to include different provisions for the different circumstances of authorities. As I explained in relation to an earlier group of amendments, "categories of authorities" tends to imply kinds of authorities, for example district authorities, county authorities and so on. We may wish to differentiate between different classes of authority, if I may use the more normal term, to define districts, counties, London boroughs and so on. We also want to differentiate in some cases between authorities which are operating different kinds of executive systems. We might wish to distinguish between authorities of different populations or different geographical size—rural, urban or riparian. Such flexibility is important because certain details of an authority's constitution may well be different because of the size, nature or geographical location of the authority. That is why we have used the formulation "cases or descriptions" which is fairly commonly used in local government legislation to provide such flexibility. There is no more sinister reason for it than that.

As regards why Amendment No. 242 refers to the mayor being a member and a councillor, I am told that for historic reasons legislation sometimes talks about members and sometimes about councillors. We wish to ensure that both references would apply to the mayor in those circumstances. There is nothing more sinister or complex in it than that. I commend the amendment.

On Question, amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Local authority executives]:

[Amendments Nos. 60 and 61 not moved.]

Lord Whitty moved Amendments Nos. 62 and 63: Page 5, line 14, at end insert— ("Such an executive is referred to in this Part as a mayor and cabinet executive."). Page 5, line 21, at end insert— ("Such an executive is referred to in this Part as a leader and cabinet executive.").

On Question, amendments agreed to.

Lord Hardy of Wath moved Amendment No. 64: Pages, line 25, at end insert (", and (c) one or more councillors of the authority").

The noble Lord said: I do not wish to detain the Committee. I tabled the amendment because it reflects serious anxieties and fears held by a number of councillors. The fears may be misguided but they are serious. There is anxiety about the risk of continued centralised power; the power of the cabinets within councils; and the nature of the mayor's executive.

I believe that to a large extent the fears are misplaced, but they exist. Perhaps the Minister can say more on the amendment in response to my comments. I think that the fears are misplaced because I do not believe that we shall have from this Government the kind of legislation that was inflicted upon local administration in Britain over the previous 20 or 30 years, largely by the party opposite I cannot envisage this Government reorganising local government in the inflationary way that occurred in 1974. I do not envisage this Government introducing legislation of the kind which gave us the poll tax—one of the most expensive exercises in British history. I do not believe that most councillors would be prepared to allow a cabinet in their authority to conduct itself with disregard for good sense or to allow unbridled error or excess. There has to be the structure and arrangement within each council which ensures that sanity is served. I note that the Government issue appropriate advice to local authorities.

I am a little concerned about the possibility that an executive role might be filled by a mayor and an officer. I do not criticise many of the devoted people who serve in senior positions in local government. But there must be a democratic base. I do not think it wise to have an executive of two: t he mayor and, presumably, the chief officer of the local authority. I do not believe that that would help to meet the basic need of local government today: to restore public regard and respect.

I have no direct modern or recent experience of local government but I recall with some affection my own service as a young man. Between 1947 and 1974, in an authority with five wards and annual elections, our local council had over 140 elections, or possible elections, in that period; and my friends and I won every single one. That is quite a good record.

We won because we conducted our affairs responsibly and openly and were ever mindful of the democratic basis of our existence as local authority representatives. We must ensure that that democratic base is well served. If it is, not only can we ensure that standards remain high and that, where they do not, more prompt attention is given, but that public respect and regard for local government, which has diminished, is strengthened. In the areas which I know best, regard has fallen, as is illustrated by the decline in election turn-out, which is a disgrace. If we are to counter that tendency, we need to ensure that the democratic base is fully served. There should be no democratic deficit in the structure of executives in British local government. I beg to move.

Baroness Hamwee

I rise to speak to my Amendments Nos. 65 and 69. The first seeks to extend the number of possible forms of executive and builds on terminology used by the Local Government Association in giving evidence to the Joint Select Committee which considered the draft legislation. It provides for, a form of executive which meets prescribed requirements of transparency, accountability and efficiency". I readily accept that I am going down the route of enabling the Secretary of State to prescribe matters in regulations, but, if we are to extend the number of forms and have an input into what they might be, I realise that without lengthy amendments that is the way to approach the matter.

I am sure that issues of transparency, accountability and efficiency will not divide the Committee. They are, as has been said tonight, the sine qua non of local government. Although we and many people outside the Chamber are concerned about the forms of executive we may be forced to adopt, I shall be interested to hear the Minister's defence of a system which will not incorporate the approach I have proposed, even if the drafting is incorrect.

Amendment No. 69 provides for a form on which the local authority has consulted its electors and other people in its area. The form enhances the decision-making process and meets the principles which I have set out. I have no doubt that the Committee could extend this debate to the length of our first debate today. I may have tempted it to do so, but I shall not speak longer tonight. However, it is part and parcel of the larger argument with which we began today.

Lord Harris of Haringey

I am slightly perplexed by my noble friend's amendment. Despite the objectives, which he set out cogently, relating to the importance of democratic accountability for any new system, his proposal appears to end up with a messy hybrid which satisfies none of those objectives.

When the Government consulted through their White Paper on the proposals, it was always clear that there was a third model which comprised a directly elected mayor and a city manager who would be responsible for many of the day-to-day executive functions. That is a clear model. I must say that it is not a model in which I am aware that many, if any, local authorities around the country have expressed the slightest interest. However, it has a certain purity, although not one I find particularly attractive.

If my noble friend's amendment were passed, one would end up with an executive which consisted both of paid officials appointed by the authority and elected representatives. That seems a hybrid form of government which would lack the clarity of one where there is direct election of an executive or an elected mayor or the executive consists entirely of elected councillors. For those reasons, the amendment is in my view misguided. It does not seem to satisfy the concerns apparently expressed by some people about the way in which executives function.

In any event, it makes the situation more complex, because as far as the public are concerned the executive responsible for decisions is a mixture of a directly elected mayor, some directly elected councilors—not necessarily elected for the function of being on an executive—and an official appointed by the council for that purpose. That seems a messy arrangement and one which does not really satisfy the objectives of transparency to which Members of the Committee have already referred.

10.30 p.m.

Lord Dixon-Smith

My Amendments Nos. 67 and 70 are in this group. I shall not take up the Committee's time for long but they need mentioning in passing, so to speak, although it is in passing in the light of the previous major debate we had.

Amendment No. 67 provides at page 5, line 25, that there should be a fourth option which would give local authorities the opportunity to pick their own form, which they consider, after proper consultation with their electorate, to be appropriate to their particular circumstances. We have debated the principle behind the amendment and I am in a sense slightly surprised that the amendment survives to this group. I have no intention of going over that ground again.

Amendment No. 70 removes subsections (5) and (6) from the clause. In effect it removes the power of the Secretary of State to make regulations because the regulations, may, in particular, provide for the form of the executive, and so on and so forth. We have covered that ground extremely well; I do not see any point in covering it in detail again. It is not appropriate that the Secretary of State should have that power. We may have a wonderful volume of draft regulations, but if anyone in the Committee has read them in detail and understood them, they are better men—or ladies, as the case may be—than I. These amendments are significant. I am happy to see them on the Marshalled List and I commend them to the Committee.

The Earl of Carnarvon

The independent councils greatly support Amendment No. 67 in the name of the noble Lord, Lord Dixon-Smith, because they feel that it gives them the opportunity to have a slightly different mix of executive and scrutiny functions.

Baroness Hanham

Amendment No. 68 stands in my name. It brings in from further on in the Bill, in Clause 21, the words of the noble Lord, Lord Whitty, as a part of the formal structure. In Clause 21 it appears as a possibility only after a referendum and after regulation. I believe that it should be brought forward in the Bill to provide the fourth option, the fourth way that a local authority might decide to try to structure its arrangements not totally in the executive mode.

We had a long debate on the executive structure earlier. I know that we are—it would be fair to say—not at one over the proposals as to how a council should be structured. However, I should like to leave this amendment as a fourth option—a way forward for those authorities which do not want to embrace totally the three models already produced by the Government—which could be adapted and, indeed, might be adapted, if necessary, within an executive structure. However, I believe that it is right and proper that local authorities should have that other possibility. Therefore, I leave the amendment for further consideration.

Lord Whitty

All the amendments in this group propose or give the facility for providing additional forms of structure beyond those which we have provided. I have already indicated that there is scope for substantial diversity within power structures and scope for other alternatives to come through. I do not believe that those alternative forms of structure would deliver the objectives that the Government have set out.

Amendment No. 65 requires effectively that any form of executive could be acceptable were it to meet the requirements for transparency, accountability and efficiency. However, that may well involve structures that are outside our prescription of executive scrutiny split. For the reasons that I spelt out earlier, that would not be acceptable to the Government.

My noble friend Lord Hardy of Wath wishes to introduce an amendment to what, as my noble friend Lord Harris said, has been the least remarked on of those options; namely, the elected mayor and council manager. Not only has that been the least remarked on, I suspect that it has been one of the most misunderstood. It is based on a separation between policy determination and policy implementation—the first for the council and the latter for the council manager.

However, particularly where councils are not very small, it is becoming increasingly common in many parts of the world for that form of government to include a directly elected mayor to give leadership to the council. That form of government has been adopted quite widely in the United States and also throughout New Zealand. In that sense, the elected mayor does not have an executive role. That is for the council manager. However, he or she is in a position to reflect the mandate given to the council as a whole and to the directly elected mayor through the election process.

I rather agree with my noble friend Lord Harris that if one was to add further councillors separately elected into that executive, that would muddy the water yet more. Three classes of person from different perspectives would form a single executive. Members of the Committee may have noticed that the mayor in that form of executive will be under a duty to appoint a deputy mayor, who will take the place of a mayor when the mayor cannot fulfil his duties or when the post becomes vacant. That deputy will not be part of the executive. That is deliberate because, once again, it would muddy the waters were that deputy to become a party to the executive. The same must apply a fortiori to councillors who have a different basis of election than the mayor.

Therefore, I fear that we are not attracted by the proposals of my noble friend Lord Hardy. I understand the motivation behind them; that is, to spread the elected basis of people who are within the executive. It may well be that councils feel that they cannot adopt that structure for that very reason. However, if they do adopt that structure, that is what is intended and that is the clarity of structure that it provides. It may not yet have proved hugely attractive to a large number of councils, but that is what is intended. I believe that the proposition changes the nature of that option.

In relation to Amendment No. 67 in the name of the noble Lord, Lord Dixon-Smith, and, to some extent, Amendment No. 69, if the objectives of those amendments is to promote greater diversity, I fear that they do not achieve that. I wish to add only that many authorities already operate shadow executive arrangements under current legislation. However, effectively the amendment would allow remnants of the previous, or existing, system to be retained and the executive structure would not have the clarity of distinction from the scrutiny structure that we seek.

The same applies to Amendment No. 68 in the name of the noble Baroness, Lady Hanham. In a sense, that is effectively grafting the possibility of an executive role on to something very like the existing committee structure. Again, I do not believe that that has the clarity of accountability and responsibility which we seek under the new arrangements.

The Government's reason for proposing a move away from the traditional committee structure is precisely to provide such identifiable and accountable executive responsibilities. I covered that on the previous group of amendments. I do not believe that any of the proposed alternatives fall in with our objectives as set out under the three options which we have proposed which make the clear distinction between the executive and scrutiny functions which we wish to see in all councils. There may be other options which achieve that, but these options do not do so. Therefore, I hope that the amendments will not he pursued this evening.

Baroness Hanham

Before the Minister sits down, perhaps I may draw his attention to Clause 21 where the arrangements which I propose are word for word what is included in government amendments to Clause 21.

Lord Whitty

To which amendment is the noble Baroness referring?

Baroness Hanham

Amendment No. 197.

Lord Whitty

We shall deal with Amendment No. 197 later in our proceedings. The arrangement which we provide there is possible only in the circumstances in which there has been a referendum on the proposition from the authority that there should be an elected mayor and where the executive arrangements have been rejected by the electorate. In that situation, we are allowing some flexibility as regards the models which would apply in those circumstances.

The prime requirement is that all authorities should go through the process of finding a structure which they believe is suitable for them and which makes a clear distinction between the executive and scrutiny functions. If they do so and the electorate rejects it, they are in a somewhat different situation. But we require all authorities to undertake that process.

Baroness Hanham

The point is that if that provision was moved to the position in the Bill to which my Amendment No. 68 applies and the referendum were abandoned, we could have the fourth option.

Lord Hardy of Wath

From the debate that has taken place, it seems clear that the option which I found most offensive is hardly likely to be enthusiastically supported. I certainly hope that it will not be.

I am grateful for the consideration which has been given to this matter. I am happy to have the information from my noble friend that this particular option seems less likely to be popular in London than some people in the north of England may fear. In view of the comments which have been made and the fact that this matter has received serious consideration, I shall withdraw the amendment. But I trust that the Government will in no way push this particular structure down the throats of British local government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Lord Whitty moved Amendment No. 66: Pages, line 25, at end insert— ("Such an executive is referred to in this Part as a mayor and council manager executive.").

On Question, amendment agreed to.

[Amendments Nos. 67 to 70 not moved.]

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

10.45 p.m.

Baroness Hamwee moved Amendment No. 71A: Page 5, line 29, leave out ("each member of which is") and insert ("not more than 60 per cent. of the members of which are").

The noble Baroness said: In moving Amendment No. 71A I shall also speak to Amendments Nos. 72 and 73. On these amendments we look in more detail at the form of cabinet which may be proposed in regulations that the Secretary of State may make under Clause 10(6). The subsection provides for a form of executive, each member of which is elected by the local government electors to a specified post associated with the discharge of particular functions.

I attempt to skin this particular cat in a couple of different ways. The first is to propose that not more than 60 per cent of the executive—I accept that that is a figure plucked out of the air for the purposes of the debate—be elected to specified posts. The second, and the point I want to explore, is to suggest that the executive may be directly elected but not elected to specific posts.

I am concerned about the lack of flexibility if there were direct elections not just of the mayor, but also of members of the cabinet who would not be in a position, if I read the clause correctly, to move between different posts. I do not believe that that would be healthy for local government. Depending on the frequency of elections, cabinet members would be stuck in positions for, say, four years with no career structure. One could go into a cabinet with responsibility for, say, leisure services, but not be able to develop one's interest in transport or environmental matters, thus allowing someone else who has or is developing expertise in leisure services to come into that area.

I do not understand why the Government have seen fit to be so careful not to allow movement. I assume that regulations would provide for a by-election if a member resigned or died. Nevertheless, it seems an odd cabinet where the leader or senior members cannot be part of a discussion about how to reorganise the split of functions and the responsibilities for functions.

Can the Minister give the Committee further explanation of the reasoning behind this model and why the Government spell out on the face of the Bill what is not now permitted but may be proposed under regulation made by the Secretary of State? In other words, a possibility is being dangled in front of us, but it will not happen yet. I would be grateful for such an explanation as I do not fully follow the Government's thinking. I beg to move.

Baroness Farrington of Ribbleton

I am afraid that the Government cannot support Amendments Nos. 71A, 72 or 73. When I explain the reasoning, it is possible that the noble Baroness, Lady Hamwee, will understand our position more clearly.

I should explain that the Government do not have any particular form of executive in mind based on the provisions of Clause 10(6). It is there to ensure the widest scope for forms of executive which may be requested by local authorities or others which the Secretary of State believes will meet the aims of the Bill. But the amendments would prevent the Secretary of State providing for executives in which all the members were directly elected, or some were elected to specified posts and others elected on a slate basis, for example.

I stress again that we do not have any plans to provide for such forms of executive. If we had a clear idea about further forms of executive which we should like to see in place, we would have placed them on the face of the Bill before the current subsection (5) of this clause. We merely seek to ensure that no potentially valid forms of executive are closed off by unwarranted restrictions to the power in this clause to add further forms of executive in due course. I hope, therefore, that the noble Baroness will feel able to withdraw her amendment.

Baroness Hamwee

It may be the time of night, but I confess that I do not understand the answer.

Clause 10(5) says that the executive, may take any such form as may be prescribed in regulations made by the Secretary of State". Members of the Committee may have objections to that; we voiced them in other contexts. Clause 10(6) says that, Regulations … may, in particular, provide for", a form of executive which the Government may not want to propose. It is suggested that if the provision is amended, it will limit the options under Clause 10(5). Unless Clause 10(6) sets out exclusively the totality of the forms that can be prescribed under Clause 10(5)—clearly it does not if English means anything—I fail to follow how my amendments have narrowed the possibilities. Indeed, I do not understand why Clause 10(6) appears on the face of the Bill at all if the situation remains as open as the noble Baroness said.

I am genuinely concerned that the cabinet that this model appears to be promoting is one which will be so restrictive as to constrain the operation of an authority which adopted it. That is one argument as to the validity and desirability of this model. The wider point is the relationship between subsections (5) and (6) of Clause 10 which, although I shall go back and read the answer, does not appear so far to have been satisfactorily explained.

Baroness Farrington of Ribbleton

I am happy to write to the noble Baroness. My understanding is that part of her proposal deletes some of the variety of options. However, it may be more satisfactory for me to write to her, place a copy in the Library and send a copy to the noble Lord, Lord Dixon-Smith.

Baroness Hamwee

The amendment does delete some of the options. That in part was for the purpose of debate. One has to find some form of words in order to explore the principle. My underlying point is the relationship between those two subsections. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 74 not moved.]

Baroness Hamwee moved Amendment No. 75: Page 5, line 37, 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: In case the Government feel that they have, so to speak, "bought" an argument on Amendment No. 74, I can say that it covered the same ground as that spoken to by the noble Lord, Lord Hardy of Wath. That is why I did not move it.

Amendment No. 75 takes us to what I suspect may be a rather vexed question among the little group of people who are concerned about matters of ceremony, and so on. I refer to the possible confusion between the elected mayor and the ceremonial mayor to whom we are all accustomed.

I believe that many members of the public set high value on the work done by ceremonial mayors; indeed, I do. My observation of the activity of mayors is that they are frequently extremely hard working and spend an awful lot of time within the community. I do not think that I have ever heard a former mayor saying, "I didn't actually learn anything during that year". They all tend to say, "I met so many groups of people and learnt so much about my own area that I didn't realise I didn't know". They are valued by members of the public: as representing the council and the government of that area.

Like other noble Lords, I consulted a dictionary to see how the word "mayor" is defined. The Shorter Oxford English Dictionary, the one to which I had access, was not very helpful, because it defines a mayor as being the, head or chief officer of the municipal corporation". So it was ahead of fits time, but not very helpful in this context.

I believe that the Government take the view that there should he flexibility at local level to combine the functions of an elected mayor with the ceremonial role. I am not arguing against that, although I have to say that I am rather doubtful as to whether it would work. They also say that the elected mayor must—and this is where I find some difficulty—be called "mayor". I would prefer to see the continuation of some old traditions and not have our language distorted in this area by the "modernisation" that is being applied through this process. If and when the public is told that it may have two mayors, I believe it will add to the confusion and not assist matters. I beg to move.

Baroness Farrington of Ribbleton

This takes me hack. Indeed, very many years ago I remember a television programme that included Ernest the Policeman and, if my memory serves me correctly, Larry and Mr Mayor.

We already have this position with regard to London. We debated the point at great length in that respect. Looking carefully round the Committee to see which Members are present, I should like to refer to the time when I was—and the Lancashire terminology was in use—chairman of Lancashire County Council. Many district councils already have more than one mayor, because there is a town council mayor, as well as a borough mayor. Other boroughs have chairmen. So a wide variety of terminology is in use. Before speaking in detail to this amendment, perhaps as I come from Preston I may register the fact that nothing would prevent Preston from being able to opt to have either a charter mayor or a guild mayor.

There are attractions to Amendment No. 75, but we feel that it is important for there to be certainty about what a person operating under that particular title is responsible for and how he or she may be held to account. On balance, we think that there should be clear provision in the Bill as to the type of mayor.

As I said, where an authority is entitled by virtue of borough status to call its chairman a mayor, it will he clear, if there is also a leader in the form of executive under this Bill, that the mayor is the chairman rather than any directly-elected figure. If such an authority were to move to arrangements that included an elected mayor and it wished to retain the title of mayor for the chairman, 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. We believe that greater certainty would be delivered if there were a clear rule that if there is an elected mayor under this legislation, it is that figure who is known as the mayor and the chairman as the chairman. or the chair as the chair, depending on the wishes of the local authority.

I should therefore be grateful if the noble Baroness, Lady Hamwee, felt able to withdraw her amendment.

11 p.m.

Baroness Hamwee

I cannot say that I am persuaded by that response. In the situation that is to pertain in London there will be a number of mayors. There will be mayors of different authorities. However, I am concerned about confusion within one authority. I cannot readily anticipate the same level of excitement among some groups if they believe that they are to be visited by the chair rather than the mayor as representing the local authority.

I shall not pursue the matter for the moment but I believe that it is a sensitive one. As people outside this building begin to be aware of what is proposed, I shall be surprised if the Government do not receive some emotional lobbying on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 76: Page 5, line 38, leave out ("local authority executive which takes the form specified in subsection (2) or (3)") and insert ("mayor and cabinet executive or a leader and cabinet executive").

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 77: Page 5, line 39, after ("not") insert ("be fewer than 5 nor").

The noble Baroness said: Amendment No. 77 is grouped with Amendments Nos. 78, 79, 80 and 81. In moving Amendment No. 77, I shall speak also to Amendments Nos. 79 and 80.

Here we are discussing the size of the executive and the size of the cabinet. The noble Earl, Lord Carnarvon, has tabled important amendments in this group. His amendments and my Amendment No. 77, and Amendment No. 80, which stands also in the name of the noble Baroness, Lady Hanham, probably share the same concern; namely, a concern about there being a small clique of members who will have inappropriate power.

Amendment No. 77 seeks to include a minimum number of members of a local authority executive. At present the Bill states that the maximum number may not exceed 10. I believe that a cabinet of two or three members should not be permitted. A further amendment in the group in my name seeks to delete a provision with regard to the maximum number. I have strong doubts as the appropriateness of the Secretary of State having the power to prescribe the maximum number. That seems to me to be a great extension of the control that is being imposed.

My Amendment No. 79 seeks to clarify the position with regard to deputies and substitutes. I accept that there may not be much of a distinction as between those terms. It may come as a surprise to the Committee to hear that the amendment is intended for clarification. I was rather surprised by that notion when I reread the amendment. However, I am unclear—I seek an explanation from the Government on this point—as to what scope exists for members of the executive to bring in other people to deputise for them.

I have already expressed my concern about the lack of flexibility that may exist within the tight models that are proposed. I believe that it would be sad if it were not possible for other members of an authority to be brought in to act as deputy to a member of the executive. We shall discuss this at far greater length when we debate the overview and scrutiny committees. Such a provision would permit some experience of executive responsibility and go some way towards furthering the career structure and breadth of experience of councillors. A number of us have concerns about that. I do not think that it is healthy—particularly if there is a very small executive—for there to be no possibility of deputising. As a matter of sheer practicality, I wonder whether the system will work if there can be no deputies. I believe that the Government's thinking at the moment is against the possibility of deputies acting on the executive. I beg to move Amendment No. 77.

Baroness Farrington of Ribbleton

In responding to Amendment No. 77 I shall speak also to Amendments 78 to 81, which are grouped with it.

As the noble Baroness, Lady Hamwee, said, the joint effect of Amendments Nos. 77 and 80 is to place a firm minimum on the size of cabinet—that is to say, the number of members—but to allow flexibility in either direction on the maximum number of members possible. In practice, the latter flexibility is likely to be used to increase the maximum size of cabinet as many might argue—as have some noble Lords—that restricting cabinet size to a range which is narrower than from five to 10 would be over-prescriptive.

The firm minimum seems undesirable to the Government. It would make impossible any arrangements based on a very small cabinet and very wide delegation to officers, for example. Neither would the Government wish to see executives any larger than 10. This is already a large number in terms of managing meetings and it could be a significant proportion of a medium-sized authority. Given the bar on members of the executive serving on the overview and scrutiny committees, providing for a higher maximum could render proper rigorous scrutiny of the executive impossible, thus losing much of the enhanced accountability that is the objective of the legislation.

The noble Baroness, Lady Hamwee, has referred on several occasions to the issue of flexibility and moving between roles. She seems to imply that the scrutiny role is a subordinate role, that career progression is to be seen as inevitable and that it is desirable for all councillors to be able to move between the two roles. The purpose of the legislation—I am sure all noble Lords who have had experience in local government will be aware of this—is to ensure that those who wish to fulfil a proper scrutiny role on behalf of the people who elect them, but who do not wish to turn their council service into a full-time career and wish to be able to maintain their other life outside local authority service, should be given the opportunity to do so. I hope that the Committee will not see scrutiny as being a lesser role. For this reason Amendments Nos. 78 and 81 cannot be supported either.

Amendment No. 79, which stands in the name of the noble Baroness, Lady Hamwee, deals with deputising for members of the executive. The Government are opposed to any kind of deputisation or substitution because we believe that it is extremely important that there should not be conflicts of interest. It would be very difficult for a genuine scrutiny role to be undertaken by someone who had been a party to the taking of the executive decision and who was then asked to make a judgment on it.

We do not intend that the executive should be some kind of sealed unit. We do not believe that there should be entire separation between the executive and other councillors. The executive will wish to take advice from other councillors, either informally or, for example, in committee meetings, and of course they will all come together in full council to determine the policy of the authority. However, the Government feel that it is important to avoid the possibility of conflict and we would not be in favour of formal arrangements for councillors outside the executive to stand in for executive councillors.

I realise, from the contribution made by the noble Baroness, that she may find this response neither totally acceptable nor one with which she agrees. Nevertheless, I hope that she will feel able to withdraw her amendment.

The Earl of Carnarvon

I understand that the Government do not wish to move on Amendments Nos. 78 and 81. However, I believe that to have 10 people on the executive is very few on a large authority, such as the City of London with 155 members and Birmingham with 117. Altogether, 13 authorities have over 80 members. In some cases I believe that exceptions must be made. Obviously, I was not aiming for 15, but I wondered whether there was an opportunity to agree a figure somewhere between 10 and 15 if an authority felt that to be necessary. I wished to invite the Government to comment on those suggestions.

Baroness Farrington of Ribbleton

I hope that, on reflection, the noble Earl, Lord Carnarvon, will feel that the earlier reply I gave to the noble Baroness, Lady Hamwee, covers the points that he has raised. However, I should like to make the point that the size of the executive is not directly and proportionately related to the number of elected members on the authority. The point that the noble Earl made did not envisage the executive and strategic roles that would be fulfilled by the executive. If, however, there are further points that the noble Earl wishes to raise, I shall be only too happy to write to him.

Baroness Hamwee

I fear that the practical result of these measures may be that we are heading for authorities which do not comprise 117 or 150 members. Without commenting on whether the executive, overview and scrutiny roles differ in their seniority or worth, I remain concerned that it will not be possible for individuals to swap between the different roles. I accept that it would be awkward for individuals with lobs outside the local authority to take on an executive role. Nevertheless, I say again that I do not think it healthy to preclude the variety of experience that may be brought to bear in the cross-fertilisation of the contribution of different councillors serving on an authority. Their experience in different roles informs each successive role they take on.

The Minister is right to say that I am not entirely happy, but I shall not pursue the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 to 81 not moved.]

Lord Whitty moved Amendment No. 82: Page 5, line 43, at end insert— ("(10) Section 101 of the Local Government Act 1972 (arrangements for discharge of functions by local authorities) does not apply to the function of electing a leader under subsection (3)(a) or appointing councillors or an officer to the executive under subsection (3)(b)(ii) or (4)(b).'').

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Executive functions]:

Lord Dixon-Smith moved Amendment No. 83: Page 6, line 13, leave out subsections (3) to (5).

The noble Lord said: I must confess to the Committee that I allowed my eye to be seduced by the heading of Clause 11. It states "Executive functions". Indeed, it is repeated with added force in the margin. It seems to me slightly odd that it needs to be repeated in precisely the same terms. Perhaps the amendment was put down without sufficient care and perusal.

I need to say something about this matter because the clause made me think of a grammar exercise I was given at a relatively young age at school. It was handed to all members of the class. It was all in lower case—evenly spaced, no capitals, no nothing. It went like this: that that is is that that is not is not is not that it. We were invited to punctuate it so that it made sense. I see from the nods and laughter around the Committee that other Members were set precisely the same puzzle. It represents a fairly simple philosophy of life, because things that are, are, and things that are not, are not. This amendment actually sets that on its head because it says that that is, is not, and that that is not, is. So I have some difficulty in following it. If it is specified in regulations, it is not susceptible to executive function; and if it is not specified in regulations, then it is. I do wish that the Government could find a more felicitous way of framing these clauses so that one does not have to deal with that illogicality.

The Minister has withdrawn the clause that was originally on the face of the Bill and has replaced it with something that is immediately and immensely longer. I think that his amendment falls into precisely the same trap. I invite him to consider that point.

That said, if I were to press the amendment I would be in danger of putting myself in the position of proposing an illogicality. Therefore, when the time comes, I may well decide that it should not be pursued. However, we need to reach that point before I can do so.

11.15 p.m.

Baroness Miller of Chilthorne Domer

I rise to speak to Amendments Nos. 85, 86, 123 and 127 which are grouped with this amendment. It is regrettable that at 11.15 at night we should be starting on a part of the Bill which deals with a new form of working for local authorities. The amended clause is long and was set down very recently. Earlier today we said that we had not had much chance to look at the amendments and comment on them. That is certainly the case for the local authorities which want to see what these provisions mean for them.

It is in no way satisfactory to introduce amendments on the functions of something that is already new to us and where the guidance provided is very far from clear. I want to concentrate on some of the guidance to see how it relates to the functions explained here. I should like particularly to ask the Minister about the section that concerns area committees. The guidance says that unless area committees are politically balanced they cannot fulfil the scrutiny function. Some Members of the Committee may be aware of how area committees work in different parts of the country. The one thing they have is fairly widespread public support. It is perhaps the only form of council committee that has recently enthused the public to attend and take part, even quite frequently. For that reason it is important that the Government are quite sure about what they are doing when they make this kind of statement.

To require that area committees should be politically balanced shows a complete misunderstanding of how they come to be set up. They are directly elected by the electors of their area. Therefore, it is difficult for the council to make them politically balanced unless it ships in councillors from another area. That has happened in some cases, but I would regard it as a discredited model for an area committee.

Will area committees be allowed to scrutinise the area services? Surely they must be allowed to scrutinise those services at a local level. This should not preclude an overview or scrutiny committee taking a wider view of the council's performance in ensuring, for example, that services are consistent throughout the authority. That is an important function for an authority-wide scrutiny committee.

The guidance states that if members are taking part in an overview or scrutiny committee and they are members of an area committee, they must first declare an interest. In some authorities, all members are members of area committees, so they will all have to declare an interest. That will take a good deal of time. The guidance seems to say that, subsequently, they should not vote in the scrutiny committee. It may be that I have misread the guidance, but it is important that the Government are clear about where area committees fit into the system. They should ensure, as Amendment No. 123 attempts to do, that nothing in this part of the Bill or in the guidance adversely affects the way that area committees which are working well can continue to operate.

I turn now to partnership working with other authorities, an issue specifically addressed by our Amendments Nos. 127 and 128. They seek to ensure that the committees which are set up jointly between local authorities are not straitjacketed or disempowered by anything in this part of the Bill or in the regulations. If such a joint committee is to have an executive function, must it consist of executive members of authorities that are putting members on to the joint committee? This is a complicated issue. If eight members of a county council are to form partnerships with all the council's districts and take one district each, only 1.4 members will be available from the county council to serve on that joint executive. If it is a 10-member joint committee, it would not be able to send enough executive members. I hope that the Minister can enlighten me and reassure me that the Government's proposals will not disallow these ways of working. They are new in many places, but are so far working well.

What is of most interest to all councillors and their constituents is that the budget and level of council tax should not be decided only by the executive but must be a matter for the full council.

Lord Whitty

First, I shall speak to the government amendments in this group which deal with functions which are the responsibility of the executive and with ways in which they can be delegated to area committees. These amendments are necessary to enable more flexibility in how executive functions are discharged and to clarify some of the provisions of the Bill as originally drafted.

Amendment No. 84 would, as the noble Lord, Lord Dixon-Smith, correctly indicated, replace Clause 11, to which his amendment and others relate, with a clause which enables the Secretary of State or the National Assembly to provide for functions which are or may be the responsibility of the executive and for functions which are not. In many ways, the main features of the previous clause would remain but the new clause would also provide for flexibility, enabling powers to allow regulations to specify the extent to which certain functions are the responsibility of the executive, including specifying steps in the course of exercising those functions.

The Government consider these provisions to be necessary so as to define properly the respective roles of the full council and the executive in setting, for example, the council's budget and policy framework, and in particular to ensure that the ultimate responsibility for setting the budget, council tax levels and overall policy lies with the full council following consideration of the proposals from the executive. I think that that probably answers the last point raised by the noble Baroness, Lady Miller. The new clause would also allow local councils greater flexibility in determining similar roles in the discharge of functions specified as "local choice" functions under subsection (2)(b).

Government Amendments Nos. 122, 125 and 126 introduce new powers for the Secretary of State to make regulations enabling an executive to delegate to area committees; delegate to another authority or enter into joint arrangements with other authorities or with area committees for the discharge of executive functions.

The Joint Committee chaired by the noble Lord, Lord Bowness, which considered the draft Bill recommended that the Bill should be capable of accommodating, within executive arrangements, area committees and joint arrangements. These provisions now do that. The other government amendments are consequential on those amendments.

To respond to the noble Baroness, Lady Miller, it is clear that area committees have an important function. I may wish to write to the noble Baroness in more detail. It is not true that the guidance implies that the area committees should in each case themselves be politically balanced, but that the overview and scrutiny of the policy must be politically balanced. There is no requirement for the area committees which discharge the functions necessarily to be balanced, although the noble Baroness seemed rather over-keen to approve of one-party states at area level and not at authority level. The guidance does not preclude area committees being of one party, so long as the oversight of the policy under which they operate is politically balanced in reflection of the balance on the council. Area committees are clearly important in that respect. They will have executive functions. Therefore, if a council member is a member of an area committee and of an overview and scrutiny committee, in that situation there would be a conflict of interest and he or she would have to stand aside. Joint committees to discharge executive functions must be drawn from members of the executive. That is important, so that there is a clear line of accountability.

Without going through the syntactical points raised by the noble Lord, Lord Dixon-Smith, at the beginning of the debate, even were the Committee not to accept Amendment No. 84 deleting the appropriate clause, if I interpret the proposal correctly it would cut across the overall objective of these parts of the Bill, which is to provide a clear and visible separate executive. That means that the executive must be clearly responsible for the majority of the council's functions, particularly the major services. The clause is intended to clarify that. Given the noble Lord's expression, it is obvious that it has not entirely succeeded and further clarification may be necessary at later stages of the Bill. I hope, however, that the government amendments are acceptable to the Committee and that noble Lords will not pursue the other amendments at this stage.

11.30 p.m.

Baroness Miller of Chilthorne Domer

I rise briefly to clarify two points. First, certainly I am not in favour of one-party states, which was why earlier this evening I advocated that PR was a much better way to ensure that they never existed in local government. That is something in which I firmly believe. Secondly, I do not believe that the Minister has wholly answered my concern about area and scrutiny committees, and I shall welcome clarification of that matter in writing before Report stage so that we may examine it further.

Baroness Hamnee

I do not know whether the Government have considered the following. New Clause 11 would be more comprehensible to a number of those who have tried to understand it, and have made similar comments to me, if the Government provided something like a flow chart or matrix to show the order in which decisions are to be taken and dealt with. I refer to all the "what ifs" and the sequences.

I have a number of questions related to two of the Government's amendments. First, as to Amendment No. 125, subsection (1) of the new clause provides that, The Secretary of State may by regulations make provision for … the discharge of any functions … (a) by another local authority (within the meaning of section 101 of the Local Government Act 1972)". Can the Minister say to which words the words in parenthesis apply? Do they apply to "local authority" or to the discharge of functions by another authority within the meaning of Section 101? I was temporarily away from my seat and did not hear the whole of the Minister's explanation, but I do not believe that the Committee has as yet had a full explanation of how these provisions relate to Section 101 of the 1972 Act.

My second question is related to Amendment No. 126. Subsection (2)(a) refers to, circumstances in which the executive, or a committee or specified member of the executive, is to be a party to the arrangements in place of the authority". Can the Minister explain what is meant by "party" in that context? Is the executive, individual member, and so on, the agent or principal? In that connection, can the Minister say whether currently there are regulations in place made by the Secretary of State which affect Section 101? If not, why is it necessary to provide for them here?

Finally, subsection (2)(e) provides for, the circumstances in which appointments to any such joint committee … need not be made in accordance with the political balance requirements". Why is that provision necessary in view of Clause 17, which no doubt we shall reach on the next day of the Committee stage?

Lord Whitty

The noble Baroness raises some very good questions. I do not believe that this evening she will receive a full explanation of the cross-relationship between these amendments and Section 101. I should offer the noble Baroness and the noble Lord, Lord Dixon-Smith, an explanation of that relationship. Since I have sought to follow the matter very carefully perhaps I should answer all the questions of the noble Baroness in writing. I apologise for not being able to do so instantaneously. I hope that, nevertheless, the overall objective of the Government's amendments in this group is clear. I shall clarify the position further between now and the next stage of the Bill.

Lord Dixon-Smith

I am grateful to the Minister for his response to my particular amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 84: Leave out Clause 11, and insert the following new clause—

FUNCTIONS WHICH ARE THE RESPONSIBILITY OF AN EXECUTIVE

(".—(1) This section has effect for the purposes of determining the functions of a local authority which are the responsibility of an executive of the authority under executive arrangements.

(2) The Secretary of State may by regulations make provision for any function of a local authority specified in the regulations—

1. (a) to be a function which is not to be the responsibility of an executive of the authority under executive arrangements,
2. (b) to be a function which may be the responsibility of such an executive under such arrangements, or
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3. (c) to be a function which—
1. (i)to the extent provided by the regulations is to be the responsibility of such an executive under such arrangements, and
2. (ii)to the extent provided by the regulations is not to be the responsibility of such an executive under such arrangements.

(3) Any functions of a local authority which are not specified in regulations under subsection (2) are to be the responsibility of an executive of the authority under executive arrangements. (4) Executive arrangements may make provision for any function of a local authority falling within subsection (2)(b)—

1. (a) to be a function which is to be the responsibility of an executive of the authority, or
2. (b) to be a function which—
1. (i) to the extent provided by the arrangements is to be the responsibility of such an executive, and
2. (ii)to the extent provided by the arrangements is not to be the responsibility of such an executive.

(5) The power under subsection (2)(c) or (4)(b) includes power in relation to any function of a local authority—

1. (a) to designate any action in connection with the discharge of that function which is to be the responsibility of an executive of a local authority, and
2. (b) to designate any action in connection with the discharge of that function which is not to be the responsibility of such an executive.

(6) The Secretary of State may by regulations specify cases or circumstances in which any function of a local authority which, by virtue of the preceding provisions of this section, would otherwise be the responsibility of an executive of the authority to any extent is not to be the responsibility of such an executive to that or any particular extent. (7) A function of a local authority may, by virtue of this section, be the responsibility of an executive of the authority to any extent notwithstanding that section 101 of the Local Government Act 1972, or any provision of that section, does not apply to that function. (8) Any reference in the following provisions of this Part to any functions which are, or are not, the responsibility of an executive of a local authority under executive arrangements is a reference to the functions of the authority to the extent to which they are or (as the case may be) are not, by virtue of this section, the responsibility of the executive under such arrangements. (9) Any function which is the responsibility of an executive of a local authority under executive arrangements—

1. (a) is to be regarded as exercisable by the executive on behalf of the authority, and
2. (b) is to be discharged in accordance with any provisions made by or under this Part which relate to the discharge of any such function.

(10) Any function which is the responsibility of an executive of a local authority under executive arrangements—

1. (a) may not be discharged by the authority,
2. (b) is not to be a function to which section 101(1) of the Local Government Act 1972 applies, and
3. (c) may be the subject of arrangements made under section 101(5) of that Act only if permitted by any provision made under section (Joint exercise of functions).

(11) Subject to any provision made under subsection (12), any function which, under executive arrangements, is not the responsibility of an executive of a local authority is to be discharged in any way which would be permitted or required apart from the provisions made by or under this Part. (12) The Secretary of State may by regulations make provision with respect to the discharge of any function which, under executive arrangements, is not the responsibility of an executive of a local authority (including provision disapplying section 101 of the Local Government Act 1972 or any provision of that section). (13) In this section— action" in relation to any function includes any action (of whatever nature and whether or not separately identified by any enactment) involving—

1. (a) the taking of any step in the course of, or otherwise for the purposes of or in connection with, the discharge of the function,
2. (b) the doing of anything incidental or conducive to the discharge of the function, or
3. (c) the doing of anything expedient in connection with the discharge of the function or any action falling within paragraph (a) or (b),

function" means a function of any nature, whether conferred or otherwise arising before, on or after the passing of this Act.").

The noble Lord said: I beg to move Amendment No. 84.

[Amendments Nos. 85 and 86, as amendments to Amendment No. 84, not moved.]

On Question, Amendment No. 84 agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-four minutes before midnight.