HL Deb 02 March 2000 vol 610 cc692-743

5.23 p.m.

Lord Whitty

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill he further considered on Report.—(Lord Whitty.)

On Question, Motion agreed to.

Clause 22 [Absence of requirement for political balance]:

[Amendment No. 45 not moved]

Clause 23 [Proposals]:

Lord Laming moved Amendment No. 46: Page 4, line 30, at end insert (". and (c) ensure they deliver both value for money and quality standards of service").

The noble Lord said: My Lords, in moving the amendment, I shall not dwell again on my concern—I have shared it with noble Lords previously about—the requirement in Clause 18(b) that 400 and more local authorities of different sizes and circumstances have to report their internal structures to the Secretary of State.

I emphasise again that my desire is simply to allow local governments to determine the structure which they judge best to produce good quality services. It is not to be interpreted, as I fear that it has been on some occasions, as a defence by me of the status quo. As the Minister will know, I have experienced both the best and the worst of local government; and I should be the last person to wish to defend the continuation of stifling and time-wasting bureaucratic committees.

My point is quite different. In this day and age we should evaluate all organisations, even your Lordships' House, not by the procedures that they employ (however fancy they may be) but on the outcomes achieved. It should be the results rather than the administrative structures employed upon which we should concentrate.

By referring again to best value evaluation system, I fear that I may be accused of being even more enthusiastic about that system than are the Government; but I am sure I am not. My concern is that the Government give to local authorities a clear message that it is the outcomes, not the structures, against which they will be evaluated. For that reason I proposed that Clause 18(b) be deleted. However, the steely response from the Minister caused me to be pragmatic. I accept that Clause 18(b) will remain. However, I have been greatly assisted by a letter which the noble Baroness kindly sent me. I am grateful and happily leave it to the Minister to decide how best these matters will be taken forward. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, we on these Benches strongly support the spirit of the noble Lord's amendment. I have not had sight of the letter he received from the Minister. However, if it gives him some encouragement, I am delighted. The Government resisted our Amendment No 11. Perhaps at this point they will consider drawing together an overall plan so that local authorities can judge whether they have the right balance of considerations—they may have too much emphasis on economic well-being at the cost of environmental well-being, and so on—which should be included in the standards of service. I look forward to seeing a copy of the letter.

Baroness Farrington of Ribbleton

My Lords, I shall endeavour not to appear steely to the noble Lord, Lord Laming. The Government strongly believe that the new forms of constitution available in Part II of the Bill will lead to more efficient, transparent and accountable local government, and that they will reinforce the best value regime in the Local Government Act 1999—I endorse the view of the noble Lord—for delivering value for money and high quality services. As the noble Baroness, Lady Miller of Chilthorne Domer said, high quality services are the ultimate test of effective and good local government.

During the Committee stage of the Bill, I undertook to consider further how we could meet the concerns of the noble Lord, Lord Laming. The noble Lord has discussed the matter briefly with me and with the noble Lord, Lord Whitty. I have written this week to the noble Lord, Lord Laming, indicating that we shall bring forward an amendment at Third Reading which I believe will meet the substance of his concerns. I hope, therefore, that the House will indulge me by considering a further amendment at Third Reading. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Laming

My Lords, I am grateful to the noble Baroness, and for her courtesy in writing to me as she did. I readily accept that the amendment in my name on the Marshalled List is in lay language which might not pass the test of a constitutional lawyer. Therefore, I happily leave it to the noble Baroness and the department to get that right. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 and 48 not moved.]

Clause 26 [Operation of and publicity for, executive arrangements]:

[Amendment No. 49 not moved.]

Clause 30 [Referendum following petition]:

Lord Dixon-Smith moved Amendment No. 50: Page 18, line 33, after ("operate') insert ("or cease to operate").

The noble Lord said: My Lords, this amendment is tabled in order to enable local communities to have a petition and subsequently a referendum to cease to operate executive arrangements. We are back in the business of whether local communities have opinions which they are entitled to express, which have validity and worth and are appropriate in the management of affairs in their own community.

The Minister made much of figures indicating that the public at large are in favour of elected mayors. I am bound to say that in general those figures could be interpreted in that way. But one needs to be extremely careful with statistics. I am grateful to the noble Baroness, Lady Hamwee, for persuading the Minister that the statistics should be revealed. They indicate support for elected mayors, in particular from urban communities.

That could be interpreted as being representative of the total community because the majority of the population lives in urban communities. Indeed, a large proportion of the population lives in cities, as the figures show. However, we must bear in mind that the community at large does not live entirely in cities; many people live in more rural environments. It is not possible to detect from the survey whether those who believe that elected mayors are less appropriate to their community come from one particular area as opposed to another, and possibly from rural areas.

Of the earlier survey work which backs up the most recent survey, one was in the London Borough of Lewisham; the second was of 763 adults across Britain, producing a similar result; and the third was a survey of 1,000 people in five major cities. That is interesting, but as one goes further into the papers one discovers more interesting information. A survey conducted by MORI shows that 92 per cent of the population believe that councils need to consult the public more. If that is so, it must be because the public believe that they have opinions which have validity and worth and which ought to be recognised.

The purpose of my amendment is to increase the recognition of local views in particular communities. The Bill as drafted is a one-way track into a cul-de-sac. It is executive arrangements as described in the Bill or nothing—and, unless there is further primary legislation, you cannot come out once you have passed a resolution to go in.

That is not the way to deal with the management of local government. I am a great believer in local communities. I believe that they have views and that where appropriate they should be allowed to determine their own arrangements. I believe that, if not in the big cities, in many of the more rural parts of the country people should be given the opportunity to determine how they manage their affairs. I do not believe that the surveys which the Minister quoted on Monday in support of the general thesis necessarily support that in relation to particular communities.

For that reason, I have tabled the amendment. The provision in the Bill is not good government. It shows a remarkable lack of confidence on the part of the Government that they feel that they have to dragoon everyone into the new managerial systems. We should be quite clear that those managerial systems are not yet proven in this country. They are still highly experimental. I remember years ago, when we were being obliged by another Labour government to undertake a great social experiment, remarking to a colleague that if we were wrong we bore a dreadful responsibility.

I should prefer that that responsibility rested with the local communities so that they could make up their minds and had themselves to blame if subsequently things did not go well. It is not that I want to wash my hands of responsibility, but that I believe that other people are responsible and that where they can be responsible for their own affairs they should be. In this matter, I believe that they should have the right to choose and therefore I have tabled this amendment. I beg to move.

Baroness Hamwee

My Lords, I, too, thank the Minister for making available the survey material. I am sure that it will repay more examination than we have been able to give it during the short time we have had it. However, like the noble Lord, Lord Dixon-Smith, I was struck by the 92 per cent of people who believe that councils need to consult the public more and by the 91 per cent who believe that councils need to improve their provision of services. Those were the highest figures in response to any of the questions.

I note that the work was carried out on behalf of the new local government network. Can the Minister confirm whether the Government have undertaken any surveys and whether those he has placed in the Library are all that are available to them? During the first day of the Report stage on Monday, the Minister referred to the survey evidence that was available to the Government. I should be grateful if he could explain whether this is the extent of it.

I also noted the not insignificant number of people who responded to the question whether having the opportunity to vote for a mayor would make them more or less likely to vote. Many people stated that it would make them less likely to vote. I am still trying to work out the significance of that because there must be some.

Questions were asked about knowledge of the proposed mayor of London. Knowledge of London's new mayor was high. That is not surprising. Respondents would be aware of the fact, but certainly not of the detail. We must be careful in extrapolating from these surveys and applying the response directly to local authorities. As the noble Lord, Lord Dixon-Smith, said, there are many varieties of local authority.

The executive arrangements which an elected mayor of a local authority will encapsulate will be very different from those of the mayor of London, who has considerable powers to influence, but few powers to act.

I thank the Minister for making the material available, but I support the thrust of what the noble Lord, Lord Dixon-Smith, said for the reasons he gave.

Lord Whitty

We debated a similar amendment in Committee and I indicated that we could not accept the proposal. It would create significant instability in the new arrangements. The noble Lord says that this is a one-way track. It is not, because the authorities can initiate a change in any system back to an alternative system.

The electorate will twice have approved the arrangements for an elected mayor: in a referendum and in the mayoral election. Therefore, that situation is different from that of a petition to move to arrangements including an elected mayor from those where there is not an elected mayor. In that situation, local people would not normally have expressed their support, through a referendum, for the arrangements in operation at the time.

The noble Lord and the noble Baroness referred to the evidence that we have placed in the Library. On Monday, I used the term "such evidence as we have available". It repeatedly shows that people favour arrangements with an elected mayor, but that the majority of councils do not.

In response to the noble Baroness, the only research undertaken by the Government was a survey of the People's Panel which gave roughly the same result as that given by the network. We do not have comprehensive material available. I would be happy to provide what we have, but I must be a little hesitant here and refer only to that evidence. However, all the evidence points in the same direction. Given the dichotomy of views between councils and local people, it is sensible, where a council does not follow the wishes of the people, that the people should be able to force through a referendum for an elected mayor.

There is, of course, the possibility that local people could petition the council for such a referendum, but afterwards it should be for the authority to decide whether to act on such a petition. It will have to judge whether public opinion is such that it would be right to hold a referendum to change from mayoral executive arrangements to different systems, despite the relatively recent approval of existing arrangements on at least two occasions.

Provided that five years had passed since the previous referendum, it would be open to an authority, be it a rural, urban, district or county authority, voluntarily to draw up proposals and hold a referendum to change from executive arrangements involving a mayor to different executive arrangements.

One other consideration as regards the detail of the noble Lord's proposal needs to be taken on board. Noble Lords will recall that, in a slightly different context in response to the Joint Committee, we have put in place arrangements for fall-back proposals for referendums to change to a form of constitution involving an elected mayor. Those arrangements will ensure that local people know exactly what the result of their vote will be. In other words, if they vote, "Yes", the mayoral system will be implemented, but if they vote, "No", then whatever fall-back has been stipulated will be put in place.

Under the provisions of the noble Lord's amendment, what would happen if people voted to abandon the arrangements? It is not specified in the amendment that an alternative system would have to be proposed. Would a council be able to propose any system? For example, would it be able to return to the status quo—the current committee system? I realise that this returns to an old difference between us, but I am afraid that the Government could not accept a situation where we would allow a return to the present committee-based system. If I interpret the noble Lord's amendment correctly, this could be something of a back-door method of returning to those arrangements.

For those reasons the amendment is not acceptable in principle. Because it does not specify an alternative outcome to abandoning the mayoral structure, it does not go far enough in offering a practical format on which to conduct a referendum. I therefore hope that the noble Lord will not press his amendment.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her support. I am grateful, too, to the Minister for his reply. However, I am bound to tell him that that is as far as my gratitude can go. Regrettably, his reply was exactly what I expected and I cannot say that I find it acceptable.

Towards the end of his remarks, the noble Lord summed up the difference between us. He said that, the Government could not accept a situation where we would allow a return to the present committee-based system". That committee-based structure has served this country well. We know that it works, albeit not perfectly and, as with all things, it is always capable of improvement. However, that structure is set against a system that we know nothing about; its benefits are still entirely hypothetical. It may work, but then, it may not.

I am sorry to disagree with the Minister; indeed, earlier I described the Bill as a one-way track into a cul-de-sac. But that is what the Bill will not merely invite; it will compel local government to take that route. This country is supposed to be a democracy. It is my view that in a democracy a government should be the servant of the people. The words used by the Minister appear to indicate that this Government have a rather different approach. I regret that. The Minister has tempted me to draft yet another amendment to meet some of his objections and to bring it back at Third Reading. I may well do that. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Dixon-Smith moved Amendment No. 51: Page 18, line 34, at end insert— ("() No referendum held under this Part shall be binding on the authority unless 25 per cent. of the registered electors have voted in the referendum.").

The noble Lord said: My Lords, in moving this amendment, I wish to speak to Amendments Nos. 54 and 55 which are grouped with it and set out in the same terms.

The amendment raises a point which we debated in Committee in a slightly different manner. What proportion of the community should participate in a referendum for that referendum to have validity and to force through a particular action? Again, we are dealing with the question of the confidence of the Government in their own proposals. If they are not prepared to put a figure on the level of participation in a referendum, one might be tempted to assume that, despite opinion polls indicating that the population are largely in favour of elected mayors, the Government are not all that confident. Indeed, when the London electorate was invited to vote on the matter it did not show a great deal of enthusiasm. Events since then are, I believe, more likely to provoke abstentions rather than votes, but that is neither here nor there.

It seems that if we are to take the route of using referendums, at the very least there ought to be a minimum participation figure for the result to be binding. What happened in Germany is an old canard; the consequences of minorities in referendums led to a dreadful cataclysm earlier in the last century. However, the price of freedom is eternal vigilance. I suggest that, despite the Minister's comments in Committee, there should be a minimum figure for participation.

The figure I have suggested would not have created any problems for either London or Wales. In the light of experience, the figure of 25 per cent is not unreasonable. I beg to move.

Lord Whitty

My Lords, although no doubt the noble Lord will think that this amendment is much more reasonable than the previous one, many of my arguments will sound familiar to him. I recognise the noble Lord's position. At first sight a figure of 25 per cent participation may not appear unreasonable. However, in this country we do not have precedents for setting any kind of threshold in elections. The one exception was that of Scotland, which I mentioned previously. The referendum in the 1970s led to a majority of those who voted supporting devolution, but the turn-out threshold was not reached. The result was a period of great anxiety and tension in Scottish politics which only recently we have begun to put right.

Any threshold can present such an outcome. We should also bear in mind that we are discussing local government. It is the hope, I believe, of all three parties that the changes to, and modernisation of, local government structures that we intend to implement will lead to higher participation and turn-outs in elections. But we have no guarantee of that. In many parts of the country, the situation in local government unfortunately has deteriorated in recent years. That has resulted in major changes—for example, dramatic changes of control—taking place with low levels of turn-out. In at least one relatively recent case that I can think of the turn-out was less than 10 per cent.

With that background to the turn-out for local government elections, it would seem unreasonable to impose a threshold of 25 per cent or, indeed, a threshold of any kind. If the majority who vote, and who are persuaded to vote for change, do so, it would then be unreasonable for us to say to them, "Sorry, your majority opinion is not enough because not enough of you turned out".

Baroness Miller of Chilthorne Domer

My Lords, before the Minister sits down, perhaps I may ask why the Government ask local authorities which are considering transferring their housing stock to achieve a minimum turn-out of council tenants in such elections or referendums. I believe that the rationale behind it is to ensure that that is one of the pieces of evidence on which the council has properly consulted and that it achieves a sufficient turn-out in a tenants' ballot. Why is that situation treated differently from this one?

Lord Whitty

My Lords, I believe that in those circumstances we are dealing with a contractual tenancy arrangement where a majority vote would, or could, alter the tenancy position of all the tenants who have not voted. Therefore, I believe that we are dealing with a different situation; that is, a change of structure, control or policy by a vote in local authorities. I do not believe that the referendum turn-out can be regarded as significantly different from the question of turn-out in a local election.

Regrettably, if we were to set a turn-out figure of 25 per cent in local elections, at present a goodly number of local election results would be disqualified and become null and void. I hope that the whole process will lead to turn-outs substantially above 25 per cent and, indeed, substantially above what I believe was the previously proposed threshold of 40 per cent. Nevertheless, at this point we cannot require that. Were we to do so, it could lead to political frustration and ambiguity. Therefore, I hope that we shall not pursue that course.

Lord Dixon-Smith

My Lords, the Minister rightly quotes the background to what happened in Scotland many years ago. Indeed, that is not an unreasonable argument. However, the fact that the noble Lord will not include a figure, even as low as 25 per cent of the electorate, reveals, as I said earlier, a great lack of confidence. Perhaps the public are not as smitten with the proposals as the noble Lord wishes to pretend.

Having spent a large part of my life in local government, I can assure the Minister that I have watched with at least as much distress as he might have done the performance of local electorates in local elections. However, the fact is that over many, many years—going back to a time long before I was involved in local government—as central government's control, guidance and funding of local government has increased, so local electorates' interest has diminished. That is a very sad fact.

However, it is also the case that the Bill does nothing to tackle that problem. Therefore, I am afraid that we shall see change being brought about and enforced on local communities in response to a very low rate of interest from the electorate. We shall probably find that electorates will continue not to be bothered greatly about what goes on in their communities unless perhaps something goes wrong. In the midst of this, among other things we are writing into the Bill procedures which, in my view, could be abused rather more easily than the present system might permit. I accept entirely that there are checks and balances. However, if things start to go wrong, perhaps then the community will begin to take an interest.

I believe that the point raised by the noble Baroness, Lady Miller of Chilthorne Domer, is entirely appropriate. That said, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 52: Page 19, line 24, leave out ("must not exceed") and insert ("(unless such regulations otherwise provide) is to be").

The noble Lord said: My Lords, this is the point in the Bill where the Government propose a threshold. This, of course, relates to the figure concerning petitions. We have been over this ground before. I indicated during Committee stage that an amendment would be necessary to ensure that regulations enable a petition threshold to be set above or below 5 per cent. This amendment reinstates the effect from the introduction print of the Bill. I believe that it delivers more fully the commitments made in our response to the Joint Committee to keep the 5 per cent threshold under review. As I promised, it is a relatively minor amendment in textual terms.

Therefore, I hope that the House will agree that the purpose of the amendment is clear. There is quite a delicate balance to be struck between setting a threshold which is too high for local people to achieve and setting one so low that councils would be forced into referendums (at a cost to the local taxpayer) which, if defeated, would be nugatory. Therefore, we believe that 5 per cent strikes the right balance and that is the level at which we shall set the threshold. However, we also indicated that we would keep the threshold under review. The amendment enables maximum flexibility to give effect to the outcome of such a review.

The second amendment, Amendment No. 53, to which I shall refer with the leave of the House, makes a drafting change to the same subsection to ensure that the intended effect of the provision is in fact clear. I beg to move Amendment No. 52.

Baroness Hamwee

My Lords, I do not quarrel with the amendments and I understand the drafting difficulties that have arisen over this particular provision. I wish merely to protest—and the noble Lord has given me the opportunity to do so—against the change in language which is occurring; for example, "the introductory print of the Bill" and "the introduction version of the Bill". That is not to criticise the Minister. I have come to the fairly clear conclusion that the problems in relation to the government amendments and in knowing precisely what the Government want to say in the Bill are due to a lack of resources of parliamentary counsel and so on devoted to the Bills.

I believe that it is entirely proper and good that there should be introduction versions of Bills to go before committees or groups which may consider them as draft legislation. However, I do not believe that it is right to slide into accepting that the Government present to Parliament as their Bill a version which they then say was merely introductory and which we all know will be amended at a later stage. I hope that the Minister will not take my comments personally because certainly they are not directed personally.

Lord Whitty

My Lords, I note the point made by the noble Baroness. I believe that she is drawing rather wider implications from the use of these terms than the Government intend. However, I concur with her in some respects. I shall try to avoid using them in legislation before this House for which I am responsible. With that, I commend the amendment.

On Question, amendment agreed to.

6 p.m.

Lord Whitty moved Amendment No. 53: Page 19, line 25, leave out ("any") and insert ("each").

On Question, amendment agreed to.

Clause 31 [Power of Secretary of State to require referendum]:

[Amendment No. 54 not moved.]

Clause 32 [Power to require referendum]:

[Amendments Nos. 55 and 56 not moved.]

Clause 36 [Time of elections etc.]:

Lord Dixon-Smith moved Amendment No. 57:

Page 21, line 17, at end insert (", and (e) as to the number of electors signing the nomination papers for a candidate for mayor, which shall be not less than 30").

The noble Lord said: My Lords, in a sense, this is a probing amendment but it is also an amendment which I hope that the Minister may feel able to accept.

Clause 36 is the point at which the Minister has the power by regulations to set out the way in which the mayor will be required to stand for election. It has various conditions and the whole matter is dealt with by way of regulations. But there is no provision regarding the number of electors who would be required to sign the nomination papers for people standing as candidates for the office of mayor.

That should be a significant issue. It would be worth having that provision on the face of the Bill, although I am bound to admit that I have grave doubts about my amendment because I am doubtful whether 30 signatures are sufficient. We require an ordinary candidate standing for a local authority ward to have 10 electors on his nomination paper. I used to trail round so that I could have a nomination from every parish that I represented in my county division. Some district councils are represented by single parishes as wards and again they still have 10 signatures on the nomination paper.

The mayor is to stand for the whole district or possibly even the whole of a county or city. It seems to me that perhaps a more reasonable figure might be two signatories from every ward or county council division within a council area. The terminology will vary with types of authority. But names to show that he has wide support across the area of authority would be appropriate. Therefore, it may be that the figure which I have chosen is not appropriate. But I chose that figure because there is nothing about that on the face of the Bill. We are now into the area of what is to be included in regulations. I acknowledge that. But that could be something which is on the face of the Bill and I believe that it. is sufficiently important to be there. If we include that, it indicates that the office of mayor is seen to be serious and is acknowledged by the Government that that is a matter which both candidates and electors should take very seriously indeed.

I should have no difficulty with a figure much higher than 30. But this is a probing amendment so that the Government's thinking is out into the open. I beg to move.

Baroness Hamwee

My Lords, my reaction to this amendment was as the noble Lord himself has articulated; that is, to have a higher number and perhaps a given number per ward or electoral division would be a good test. In the discussions on the mailshot to London electors, I thought that if the number of people nominating candidates for mayor were to be higher than the 10 per borough which is proposed, the Government's anxieties about providing publicity for restaurateurs and nightclub owners might have been answered because of the greater difficulty there would have been in obtaining nominations.

But it is an important test for a candidate to show that he or she has support across the area, which is, after all, the rationale for the nominations within a particular ward, if one is standing for a ward.

Baroness Farrington of Ribbleton

My Lords, the Government do not feel able to support Amendment No. 57. As we said in Committee, we have not yet reached a firm view on whether the nomination requirements for mayoral candidates should differ from those which apply to councillors generally.

We recognise that this is an important issue which affects the political process and that there may be a number of differing views about what the requirement should be. Therefore, we shall seek views from all interested parties on those matters before deciding how to proceed. We shall do the same in respect of expenses limits for mayoral candidates and referendum campaigns.

It is normal practice for rules for local government elections to be made by secondary legislation. The regulations which we make following the consultation exercise will be subject to the draft affirmative procedure. Therefore, noble Lords will have another opportunity to debate this issue which, as the noble Lord, Lord Dixon-Smith, said, is extremely important. It is equally important that we get it right. We believe that the consultation is important. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Dixon-Smith

My Lords, I am grateful for the support from the noble Baroness, Lady Hamwee. I am grateful to the Minister for her reply. Again, my gratitude stops there because there is an increasing tendency in legislation to deal with large parts of it as rules in orders. In many ways, that means that we are required to legislate on particular matters with blindfolds over our eyes or at any rate blinkers, because we can look only at what is on the paper before us.

I entirely accept the point about consultation. I am delighted to hear that the Government want to get this right. I could probably tell them now what the answer should be. If they agreed with that, we should have no difficulties at all. But I accept that it is normal practice to regulate on the detail of local elections. We must wait with bated breath.

However, I hoped that I should have flushed out the Government Front Bench and persuaded them to reveal that they have some thoughts on the matter. I have signally failed. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 58: After Clause 36, insert the following new clause—

COMMISSION TO REPORT ON PRIMARIES FOR MAYORAL ELECTIONS

(" . The Secretary of State shall establish a commission which shall within one year of the enactment of this Act report on the introduction of primaries for the selection of candidates for the choice of elected mayor.").

The noble Baroness said: My Lords, I am sure that the Government will have thoughts on this matter. The amendment proposes a new clause requiring the Secretary of State to establish a commission to report on the introduction of primaries for the selection of candidates for the position of elected mayor.

We are debating this Bill and elected mayors for local authorities in cities and other areas throughout the country at a time when the term used for the selection for candidates for the mayor of London is very often "a shambles".

The electoral college which Labour established has sadly—and I am sad about this—left an indelible impression that Labour's selection has been fixed. Sadly, speaking for my own party, it is not newsworthy to select a candidate by one-member, one-vote, by single transferable vote. We undertook the selection in a calm and ordered fashion. But, as I say, that is not a news story.

I believe that the shenanigans have done lasting, long-term harm and the mayors of other cities must not start under the same shadow. The shenanigans have also harmed politics and, in my view, the democratic process. The Government can protest—and they do—about that but quite honestly, the public know a fix when they see it. It is likely—I believe that we shall see it on 4th May—that voters, particularly the party's own members, will express their concern about the process through the way in which they vote, irrespective of who stands.

Until the past few weeks, I should not have advocated anything other than each political party choosing its own candidate in the way in which it sees best. However, in the context of debates about the Bill where we have used the terms "transparency" and "accountability" a great deal, I have been left wondering whether in fact we are going to provide for elected mayors who, on the basis of current experience, will be accountable to the party machine before their local electors.

The primary system in the United States is widely used. I am not suggesting, of course, that one should translate American methods to this country without careful consideration. We are different cultures, but we are both democracies. I understand that the primary system came about when the previous convention system. succumbed to public pressure for greater democratization and dispersion of political power". That quotation comes from a report from the library of Congress itself. In the United States the different states—not universally, but in most cases—use primaries for choosing candidates for federal state and local nominees. The systems are diverse, although I understand that nearly 35 states and the district of Columbia have closed primaries; that is, with restricted participation. However, one must then consider the restrictions on the selections we have been observing through the newspapers in London. In those states, one has to declare one's allegiance. In 15 states, anyone may choose for which party one wishes to promote a candidate and express one's vote.

I appreciate that my remarks have been directed to the problems we have seen in the Labour Party selection process, but I cannot help but observe that they are not confined to that process. The Conservatives have had their own difficulties, which they overcame a little earlier. But the methods they have used for selecting assembly candidates are ones which I wish we were not witnessing. As I understand it—I daresay the noble Lord, Lord Dixon-Smith, will correct me if I am wrong—the candidates for the London-wide list have been selected by what one should probably call a college; a relatively small group of individuals who are the chairs of the constituency parties. Also, as I understand it, the candidates for Labour's London-wide list for the assembly have emerged—I cannot think of another word for it—from Millbank.

The amendment does not seek to impose a new system but to provide for serious consideration of a new system. That is why I have suggested a commission. I readily acknowledge that I am not the only person to have had the notion of opening up the selection process beyond a narrow band of people, some of whom may have a much greater weight of vote than others. It was only after I tabled the amendment that I remembered that I had read comments to that effect by the Member for Ealing, Acton and Shepherd's Bush. I believe that that strengthens my argument that the call is coming from more than one side and from a number of quarters.

While I always feel a little embarrassed about talking of electoral politics from this House, I hope nevertheless that we may provide some kind of impetus for a serious consideration of how the sadly declining reputation of local government and politics in this country may be reversed. We have made no secret of our concerns about the introduction of elected mayors for local authorities, but if we are to have the prospect of elected mayors, no one will be more enthusiastic than my noble friends, my colleagues outside this Chamber and I to make sure that the system is as good as it can possibly be. I beg to move.

6.15 p.m.

Baroness Thomas of Walliswood

My Lords, I want to add a particular argument to the points raised by my noble friend. I address the concern expressed on a number of occasions from the ministerial Benches about the possibility of frivolous candidates taking part in large elections and causing all sorts of problems. One of the advantages of the primary system is that it tends to eradicate such frivolous candidates because it is an extremely rigorous process.

I have in my hand the revised draft dated 9th January 1999 for the primary and election systems for the year 2001 in the city of Los Angeles. Although it is a large city, similar programmes will take place in all city elections. There are several large cities in our own country apart from London in which elections will take place. One must first declare that one wishes to be a candidate. At that time, one must make a statement of economic interests, which is deposited with the City Ethics Commission. That statement must, itemize investments and interest in real property held by the candidate on the date of declaration of candidacy, and sources of income received during the 12 months prior to the date of filing". The statement lies on the table and in public. We know that certain candidates are rubbished before they reach the election process because their declarations prove to be as full of holes as a colander.

At a later stage, when one is to state one's occupational designation on the ballot, it is limited to no more than three words; such as "lawyer", "public attorney", or—

Lord Tope

"Peer of realm"!

Baroness Thomas of Walliswood

—Or "peer of realm". I agree that it would be quite funny to run in an American election as a peer of the realm, but I do not believe it would be possible.

One may not mention the name of one's company or business. The only proper name which may be included is a geographic place name. So in a famous case which has been quoted to us on a number of occasions, one would state, "Garage owner, Haringey". That is all that would be permitted.

At the next stage one has to get together a nominating petition. In the city of Los Angeles, all the main officers—not only the mayor—must provide large numbers of signatures. If one is not willing to pay 300 dollars as a deposit then one has to accumulate a larger number of signatures. Those various provisions gradually enforce the fact that one must be a solid candidate in order to start the process going, particularly as one must have at least 500 but no more than 1,000 signatures on one's nomination form. You and other residents of Los Angeles may circulate your petition. The advice is rather charming. It states, Usually, between 800 and 1,000 signatures are needed to obtain 500 valid signatures". In other words, before one gets anywhere near the election system itself, one must demonstrate in public—these are all public documents—that one is a person of solid intent. One must declare how much one earns and what property one possesses and one must be able to demonstrate a large amount of popular support. That seems to be one of the advantages of the system. If the rules were drawn up correctly, one would discourage most of the frivolous candidates.

Lord Smith of Leigh

My Lords, before the noble Baroness sits down, perhaps I may ask: if the system in Los Angeles is so good, why is the governance of Los Angeles so bad?

Baroness Thomas of Walliswood

My Lords, the governance of Los Angeles is interesting; sometimes excellent and sometimes appalling, which can, perhaps, be said of most large cities.

Lord Dixon-Smith

My Lords, this is an interesting idea. We should be grateful to the noble Baronesses for, at any rate, provoking us to think for a few moments about something else. However, I have a dreadful feeling in my bones that if this is pursued, yet another local government Bill will come along. If one includes the Greater London Authority Bill, which is a kind of local government Bill, we have had three in the past 15 months. That is knocking local government about a little.

However, we need to think carefully about how we arrive at our candidates. This point flows logically from those I raised about people's names on nomination papers for mayor. However, as regards the existing selection procedure, it is fairly easy to see how one can arrive at a mechanism to select a London-wide candidate for mayor. One would be able to include everybody in that machinery, if one had the strength of character to do so. One could have "one man one vote" or one could be slightly redistributive, if so inclined, which would be up to the party. It is also easy to see how one arrives at a candidate for a particular area within a city.

However, there is a lacuna concerning those on the party lists. Whether or not it is satisfactory, the Government's candidates emerged from Walworth Road and ours emerged from a secret enclave of senior constituency officials. Given the present timescale of the operation, that was the way things were done for this election. However, I have to say that I hope that my party—I cannot speak for others—will learn from the experience of this election and that we will do rather better next time.

I return to the "guts" of the matter; the primaries. The idea is worth studying. The amendment would create the background and pave the way for a study to be done. To that extent, I am happy to support the noble Baroness.

Baroness Farrington of Ribbleton

My Lords, this has been an interesting and somewhat novel entrance to debate. I reassure the noble Lord, Lord Dixon-Smith, that we do not intend to incorporate the idea into another local government Bill. I believe that the noble Baroness, Lady Hamwee, should overcome her diffidence and embarrassment about talking on electoral politics. I had not noticed such embarrassment and reticence before. However, I shall look out for it in future.

The amendment contains an interesting idea. However, we believe that, provided a candidate can meet the nomination requirements, it is for the candidates themselves to decide whether to stand for mayor. Where a candidate is to represent a political party, it is for the party concerned to decide how to select that candidate. We do not believe that that is an area where Government should be involved.

In response to the points raised by the noble Baroness, Lady Thomas of Walliswood, I agree that much can be learnt from looking at electoral systems and structures in other countries. However, I would perhaps argue that this particular example is alien to the political tradition and culture of this country, and there are concerns about it.

As all noble Lords will readily accept, the Government would not want to become involved in state sponsorship of primaries, which could focus attention on candidates from political parties to the possible detriment of independent candidates. The system in the United States, even in the example and detail given, militates against poor candidates. Why should somebody who finds difficulty in raising a deposit be required to have more signatures than somebody who is readily able to raise the deposit for the primaries? The cost of conducting a primary campaign across a large area can be exceedingly expensive and militates against individual candidates.

In the United States, some of the costs of primaries are met by the taxpayer. We do not yet have evidence that taxpayers wish to fund the internal decisions of political parties. As I have said, any state sponsorship could militate against independent candidates.

We do not believe that this is an area where the Government should have a role. We believe that parties should make their own decision about selection of their candidates. We are totally happy to use a system which produced our leader, deputy leader, Prime Minister and Deputy Prime Minister. Therefore, I urge the noble Baroness to withdraw her amendment.

Baroness Hamwee

My Lords, I assure the noble Lord, Lord Dixon-Smith, that the amendment was not intended to create jobs for parliamentarians. That was not in my mind.

As regards the cost of primaries, one has to accept that there is a cost to democracy. I should like the country to debate further what cost should properly be met. The noble Baroness says that we do not yet have evidence that the taxpayer wants to fund internal selections. In proposing the amendment I attempt to suggest that the selection process should not be quite as internalised as that we have just witnessed, but that it should be broadened. I am not sure that the problems we witnessed will make the taxpayer more or less interested in funding the activities of parties. One could argue that either way.

I am sad that in what is almost their first attempt at the Bill—we have discussed the introductory version—the Government are so sure that everything is right. I believe that much can be learnt from other ways of doing things. As regards the argument that we should reject the idea of primaries because they are alien to the traditions of this country, I do not believe that gets off the ground. So, in spades, are the proposals for elected mayors. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Clause 37 [Voting at elections of elected mayors]:

The Deputy Speaker (Baroness Serota)

My Lords, before calling Amendment No. 59, I must inform the House that if that amendment is agreed to, I cannot call Amendment No. 60.

Baroness Hamwee moved Amendment No. 59: Page 21, line 20, leave out subsection (1).

The noble Baroness said: My Lords, in moving Amendment No. 59 I shall speak also to Amendments Nos. 61, 62 and 87. Amendments Nos. 60 and 88 are also in this group.

With this group of amendments we return to the mechanism for electing mayors. The government amendments propose a first-past-the-post system. Our amendments propose, once again, an alternative rather than supplementary vote. That system will allow people to vote, as far as they wish, down the list of candidates, ranking them in preference rather than having their choice restricted to only two.

The main plank of the Minister's argument against our proposal, as put forward in the debate at the last stage, was the difficulty in explaining to voters the need for a different system for the election of authorities other than Greater London. He talked about the election for mayor of London being a high profile event and suggested that it may be thought that the Government were somehow letting other communities down by having a different system.

There is an answer, though not one that politicians are very good at giving; that is, "We have reflected and have decided"—they do not need to say that they were wrong—"that another system would be better". There is no shame in that. Indeed, there would be great credit in politicians who could show themselves to be open-minded.

There is a lesson to be learnt from what is happening at the moment. The noble Lord, Lord Lipsey, was clear in his explanation at the last stage that, given the candidates who may be standing for the position of mayor of London, it would be right to allow the electorate to vote for more than two candidates, indicating their relative preferences, which may include putting some of them low on the list.

We on these Benches have always argued that politics is not a game of "Buggins' turn", though I accept that some more old-fashioned politicians feel that that is a cosy system for the two larger parties. The presence of Mr Ken Livingstone—I hesitate to say the "ghost" thereof—points up the desirability of allowing people to vote one, two, three, four and so forth if they wish.

The argument for a supplementary vote is that the votes count and there is more chance of "ownership" (to use management jargon); that people will feel more involved than in the first-past-the-post system. Again, I agree with the noble Lord, Lord Lipsey, that allowing supplementary votes is a better system than first past the post. People feel that they have a real stake in the matter. But it is not as effective as voting as far down the list as one wants.

The noble Lord, Lord Dixon-Smith, in advocating the first-past-the-post system at the last stage, described it as having both simplicity and brutality. I agree with him to that extent. He suggested that we should treat the GLA as something of an experiment. I hope that the Government will accept that, having designed a system for one election, the read-over to other elections is not automatic. We do not want elected mayors throughout the country who may be elected on what may be a minority vote. It is important that, if we are to have a new system, it should be one which involves people to the greatest extent and is as successful as it can be. I beg to move.

Lord Dixon-Smith

My Lords, Amendments Nos. 60 and 88 are paired with Amendment No. 59. As the noble Baroness, Lady Hamwee, said, they would change the system of electing mayors to the system of first past the post.

This is a well-tried system of election that has stood this country well through thick and thin over the centuries. We need to think a little more carefully than perhaps we have as to whether we want to go to the more sophisticated systems that supposedly give a more valid result but do not necessarily do so. It is possible to elect somebody with a large proportion of second-choice votes.

Neither I nor my party is convinced that the new systems of voting are the improvement they are held out to be. It is interesting to recall—the noble Baroness, Lady Hamwee, will not forgive me for this—that the former Liberal Party in the good old, bad old days, when it was in a position to form a government, believed happily in the first-past-the-post system. It only changed its view as it saw its political circumstances alter and felt that the new system would give it the chance to recover an element of influence that the first-past-the-post system removed from it as a consequence of the creation of the Labour Party.

I do not believe that we should go in for these diverse systems of election across different parts of the government machine. In the final analysis, the governance of this country is one sophisticated machine consisting of many components, and if they do not work together, the system does not work well. Those who regard themselves as the most important components of that machine—I do not necessarily accept this—are the Members of the other place and they are without exception elected on the first-past-the-post system. If it is good enough for them, then it should be good enough for everybody else. Of course, if somebody is prepared to say that the justification for change and the belief I spelt out is not correct, I shall be happy to hear that, but it may lead to some interesting debates.

Lord Whitty

My Lords, I am always happy to participate in a debate on electoral reform but we do have some rather set positions on these matters and we did discuss it at some length in Committee. For a brief moment I thought we were about to hear something new because, although we are used to the noble Lord, Lord Dixon-Smith, defending to the last ditch the first-past-the-post system, as indeed do most spokespeople for his party, the logic of his historic analogy about how the Liberal Party changed its view in the light of its electoral fortunes looked as though it was leading to a change in the Tory Party position. But I was disappointed.

We discussed this matter at length in Committee. We also discussed it in relation to the GLA Bill and the arguments, broadly speaking, remain the same. The noble Lord, Lord Dixon-Smith, sticks with the status quo; the noble Baroness, Lady Hamwee, has a relatively sophisticated system of electoral reform and we, as always, take the third way in a relatively understandable form of electoral reform. We feel it would be most appropriate to apply the supplementary vote in relation to the mayor.

The argument between the supplementary vote and the alternative vote is relatively narrow. We accept that. But we believe that the supplementary vote has an edge. It is simple and easy to understand. People may feel that by saying that I am disparaging the electorate, but I quickly add that the vast majority of the electorate could probably even understand some of the more historical electoral systems. Nevertheless, simplicity, when one is changing the totality of a system to a mayoral-based local government system, is important and we do not want confusion here.

It is also my contention that the supplementary vote system is closest to the traditional method while at the same time allowing a clear result and ensuring that we do not have mistakes and unintentional votes. When we conduct a ballot to ascertain a clear preference in relation to a single high profile office like that of the mayor, it is important for there to be clarity, simplicity and acceptance as regards its conclusions. We believe that the supplementary vote has those characteristics rather than the alternative vote proposition. I give way.

Lord Lipsey

My Lords, I am most grateful. Does my noble friend the Minister agree that it absolutely refutes the calumnies that Labour has in some way tried to fix the election for the mayor of London that it has, for the principled reason he has just outlined, chosen the electoral system that just gives the outside squeak of a chance to an independent Livingstone candidate? Is my noble friend preparing us to defend any similar charges if some loony runs in Liverpool or Leeds by choosing the electoral system that actually gives independent loonies the best possible chance?

Lord Whitty

My Lords, I am not entirely clear as to how I should respond. As I have been in this Chamber all afternoon, I do not know the latest developments in London, let alone in Liverpool and Leeds. We certainly take an approach that does not exclude candidates from outside the traditional party structures. But whether or not one refers to them as "loonies" is a matter of taste. The system that we propose would allow a break-through in the electoral system if the people of Liverpool or Leeds felt that it was necessary—to coin a phrase—to break the mould. Whether I would advise them to do so in London or elsewhere is an entirely different matter. I believe that my noble friend and I would probably be at one on advising them to vote for a mainstream candidate, preferably a Labour candidate.

We want to construct a system that will allow for some flexibility. Although it is not a conclusive argument, the system that we have applied in London would be a sensible one to apply to other cities and local authorities that chose the mayoral structure. It would be difficult to explain why the systems were significantly different. Broadly speaking, I think that we should adopt the same approach. In my view, the alternative vote proposition has fewer merits than the supplementary vote in that context as regards clarity of result, simplicity of outcome and consistency with the arrangements that we already have in place in relation to the mayor of London. I therefore hope that we stick with what the Government propose. Again, it is the middle way and one that is completely understandable. I hope that the House will not adopt either of the propositions before us today.

Baroness Hamwee

My Lords, until we were into this debate, it had not occurred to me that we were talking about Derek Hatton.

Lord Whitty

My Lords, I must point out that I was not talking about Derek Hatton and certainly do not intend to do so.

Baroness Hamwee

My Lords, that is very understandable and most wise.

I retabled these amendments because of the argument that the rest of the country should follow London. The Minster said that it would be difficult to explain why other authorities were different from those in London. I say again, it is only difficult if one is not prepared to say that one will learn. The Minister also talked about the need for simplicity when changing the system. I recognise that this is not a matter for his department, but I hope that the Home Office will find ways to explain to Londoners the system with which they will be faced on 4th May; namely, one consisting of four votes. The publicity that one has seen so far talks only about the mayor—the most important job in London—and does not give any indication that there is more than one vote in the system. There is much education and information required in this respect.

I was sorry to hear the Minister's response, although I cannot say that I am entirely surprised. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 and 61 not moved.]

Clause 38 [Entitlement to vote]:

[Amendment No. 62 not moved.]

Clause 39 [Power to make provision about elections]:

[Amendment No. 63 not moved.]

Clause 40 [Provisions with respect to referendums]:

Baroness Hamwee moved Amendment No. 64: Page 23, line 6, at end insert ("notwithstanding that the question to be asked may include mention of an authority's fall-back proposals as drawn up under section 25 above").

The noble Baroness said: My Lords, this amendment relates to the referendum regulations. Its purpose is to probe why local authorities are not to be allowed to give an explicit second option on the face of the referendum question. As the Bill stands, there will be fall-back arrangements under Clause 25 but these amount to little more than a cosy exchange between the local authority and the Secretary of State. The correspondence is not "copied" to the electorate.

On the last occasion, the Minister said that the outline fall-back arrangements—there are many different arrangements under this Bill—would give clarity. I believe that that was what he was saying, although he may have been saying that his amendments would give such clarity. In any event, the Government's argument is that there must be executive arrangements and they reject the status quo, or what has come to be known as the "status quo plus", of local organisation. Therefore, I feel no more confident than I did when we started the Bill's proceedings that the local electorate will be as involved as I believe it should be.

I realise that the amendment is quite difficult to follow when taken out of the context, but the proposal is to ensure that the next best option in the eyes of the local authority is spelled out as part of the referendum process and, indeed, as part of the referendum question. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, there is another reason why this amendment might be seen as important. Some areas of the country are still three-tier areas. Once the population has had an approach from both its county and its district council and, for example, has gone for an option in one case to have a directly elected mayor, it may well come to a different conclusion for the other tier authority. The amendment would allow for more flexibility in places where people have not had any experience of what it would be like to even think about having two people responsible for their well-being, socially, economically and environmentally. It is possible that that would work, although I still have particular reservations in that respect. Nevertheless, the amendment would offer the population a chance to have a second thought about exactly how these arrangements might work.

Lord Whitty

My Lords, I am not entirely sure that I followed the noble Baroness's point. We are not really talking about two-tier structures here; we are talking about structures within one of those tiers. However, I shall read what she said in Hansard to ascertain whether I need to give her a clearer answer. I did not quite follow the main point.

As far as I am concerned, the main point here is that there should be a clear answer to the referendum question, as well as a clear understanding on the part of those who are voting as to the consequences of voting "Yes" and the consequences of voting "No". In most cases, where we have held referenda, and where other countries have done so, there is a straight Yes/No answer rather than a series of questions to which one must answer Yes and No, which can actually give an inconsistent result. The amendment seems to imply an either/or form of question rather than a Yes/No form of question.

In our view, it is sensible to stick with the principle that the question is not to pose a choice between two options but to seek approval or rejection of the option that is put before the electorate in that referendum. Having said that, I accept that it is important that those voting in a referendum either way know and understand the consequences of voting Yes or No. We have followed the Joint Committee in this respect in that it recommended that the Bill should be amended to clarify the position if there were a no vote. As noble Lords will recall, we have now done that. The Bill now requires that the authority must have adopted outline fall-back positions. Our draft regulations and guidance make clear that councils will be required to publicise both the main proposal and the fall-back proposal. In that way local people will know exactly what the consequences of a no vote will be, as well as the consequences of a yes vote.

I reassure the noble Baroness by saying that this is not the end of the process. If our approach to this matter is shown to be wrong, it can be changed in that we intend that the Bill will ultimately include a requirement for the Secretary of State to consult the electoral commission—when that is established—on the regulations, including regulations for defining the questions in such referendums. I hope therefore that the noble Baroness will not press her amendment tonight.

Baroness Hamwee

My Lords, my noble friend made a good point as regards the questions being asked of a single elector in respect of more than one tier of local government and the fact that the answers may be different in respect of the different tiers. The Minister cautions us against having more than one question. However, as I recall, the referendum in Scotland was not confined to one question in that it contained a question about tax varying in addition to the question about whether people wanted a parliament.

Lord Whitty

My Lords, that was a sequential question; it was not a list of options to which one could conceivably answer yes to all.

Baroness Hamwee

My Lords, I take that point. However, that shows that referendums are not necessarily the rather neat provisions that we may have considered them to be.

The Minister said that voters would know the consequences of a no vote because of publicity that would be given to the fall-back proposals. That seems to me to be arguing against including a question on the referendum paper. If it is assumed that the voters take the publicity into account, they ought to be able to express a view on that as part of the process. However, I recognise that we shall not take the point further now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [Duty of relevant authorities to adopt codes of conduct]:

Baroness Hamwee moved Amendment No. 65: Page 27, line 16, after ("newspapers-) insert (", which with the approval of the Standards Board for England or the Standards Board for Wales may be a newspaper published by the authority,").

The noble Baroness said: My Lords, Part III of the Bill concerns codes of conduct and ethical standards. My amendment concerns the availability of publicity on a code of conduct after it has been adopted by a local authority. It is a small point but one that I consider is worth spending a few minutes discussing.

The Bill provides that the code must be published in newspapers circulating in an area. At the previous stage of the Bill I proposed that, for the purposes we are discussing, a newspaper could be a newspaper published by an authority itself. The Minister was concerned about a danger of bias or the paper not being properly delivered and so on. I am, of course, aware of the cost of advertising in a commercial newspaper. I refer again to using councils' own newspapers, which often have a larger number of readers and are certainly more widely circulated than commercial newspapers. I take the points that were made at the previous stage but I believe that there may be some scope for variety here and for assessing the most effective method of circulation. The amendment proposes that the use of such a newspaper must be approved by the relevant standards board. I beg to move.

Baroness Farrington of Ribbleton

My Lords, this amendment proposes that the Bill be amended so that a local authority may, with the approval of the standards board in England or Wales, publish information regarding the adoption of a code of conduct in a newspaper published by the authority.

We would certainly encourage local authorities to publicise the adoption of a code of conduct through their own publications. Indeed, the Bill as drafted would not prevent that. However, we are wary of including an amendment that would require the standards board to approve such publication.

The noble Baroness, Lady Hamwee, referred to the need for variety in appropriate circumstances. We appreciate the arguments put forward by the noble Baroness, Lady Hamwee, in Committee that in some local authorities a local newspaper may not always reach as wide a population as one distributed by the local authority. There may be a case, therefore, for requiring a local authority to publicise that it has adopted a code in both a local newspaper and one of its own publications. We intend to consider that option further. Therefore I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Hamwee

My Lords, I am grateful for that reply. I hope that I do not argue against myself when I make my next point. The Minister will understand that I would not want an authority to be required to publish a newspaper if it does not normally do so. There is an "if" somewhere in that point. The Minister acknowledges the point. I am grateful for her comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Duty to comply with code of conduct]:

Lord Dixon-Smith moved Amendment No. 66: Page 28, line 2, at end insert (", subject to subsections (9) to (11)").

The noble Lord said: My Lords, it is a matter of regret that sometimes human behaviour is not all that we would wish it to be. The amendments that are grouped with Amendment No. 66 seek to protect someone from the possible misbehaviour of those forming a larger group. When we talk of standards of conduct and codes of conduct, it may seem unreasonable—as they are designed to ensure that people behave well—to consider that what appears to be an entirely reasonable provision that should improve behaviour could be used in a perverse way. However, as we are considering the consequences of legislation we have to consider what is possible. We also have to consider the weaknesses of human beings and human frailty generally.

These amendments are designed to ensure that if a member of an authority felt that a code of conduct was designed in such a way as to make it impossible for him to continue to serve, there would be a right of appeal against the oppressive measures in the code. That situation is conceivable.

At present Clause 47 properly imposes on councillors a duty to comply with the current code of conduct. That code can, of course, be amended, in which case all councillors must sign up to the amended code. They have two months in which to do so. If they fail to do so, they cease to be councillors. On the face of it, that is an entirely reasonable procedure. No one could quarrel with the principle that is spelt out at all.

However, there may be a particularly iconoclastic individual on an authority who manages to get himself thoroughly disliked by everyone else. It is not inconceivable; this kind of thing happens in human organisations from time to time. It is sad when it happens. In my career, I can certainly recall having to ease at least two people out of employment for that reason. It was very sad but, despite everything that could be done, the situation was impossible.

In that kind of situation one can imagine an unreasonable temptation—which may in the end be given way to—for members of a standards committee to devise a new code of conduct. They could include in it, for example, conditions in regard to quantum of attendance, and then rig the timings of meetings inconveniently for the individual concerned so that he could not comply with them. One would then have a very false situation. The amendment seeks to provide a route for a person who feels that he or she is being abused in this way to have a right of appeal.

I may be accused of being utterly cynical and thinking too much about the dark side of human nature. I do not apologise for that. I recall that when I was in County Hall in the good old, bad old days, one of our most instructive days was spent—I have said this in the Chamber before—considering how one could set about defrauding the authority. That exercise was very helpful.

One needs to recognise, in any legislation that deals with human beings and human behaviour, that we should take into account the possibility of a darker side to our nature. We need to provide mechanisms which ensure that the darker side—if it comes out—is not allowed to prevail. I beg to move.

7 p.m.

Baroness Farrington of Ribbleton

My Lords, in moving his amendment, the noble Lord, Lord Dixon-Smith, has made clear his fears about the potential that he sees for an individual to be victimised in some way.

The general principles underlying the code of conduct will be subject to extensive consultation, followed by debate under the affirmative resolution procedure in this House and the other place. The model code of conduct will also be the subject of careful consultation. There is provision in Clause 45 for the code to be drawn up by representatives of local government itself before being approved by Parliament.

Local authorities will be able to add their own provisions to the code, but these will have to be consistent with the code as well as with any guidance issued by the standards board. Members will be able to influence or contribute to the debate before such provisions are adopted. We are confident that careful drafting of the model code will ensure that politically or personally motivated inappropriate local additions to the model by an authority would not be considered "consistent with the national model", as the Bill requires.

So far as concerns the local authority's standards committee, it must comply with any regulations issued by the Secretary of State on size, composition and membership. It is required to send a copy of its terms of reference to the standards board, which could also issue guidance if it felt anything was inappropriate or unfair.

We do not contest the right of an individual to appeal against unreasonable or oppressive provisions, but we believe that the safeguards already built into the new ethical framework will prevent the need for any such measures. It is possible—although, in our view, unlikely—that a local authority may impose a condition on its code of conduct that is politically motivated but that complies outwardly with the tenets of the national model and the general principles. We cannot think of such a provision, but no doubt it would be remotely possible.

If the standards board had not excluded such a provision using its guidance, or if the Secretary of State had not covered it in the model code or standards committee regulations, it would still be possible for a member, using the test of "reasonableness", to apply for judicial review. On that basis, we feel that there is an opportunity for action to be taken in what we believe to be the extremely remote circumstances outlined by the noble Lord. I hope that he will feel able to withdraw his amendment.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for her reply. I am delighted to hear that there is a route by which an appeal can be made. I am not quite so delighted when I hear that it would be by way of judicial review. A judicial review tends to be expensive. It is not a route which I would describe as being freely available; it is expensively available.

That said, I will study the Minister's response. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 69 not moved.]

Clause 48 [Standards committees]

Lord Dixon-Smith moved Amendment No. 70:

Page 29, line 13, at end insert (", and (c) may not have a majority of its members composed of members of the executive").

The noble Lord said: My Lords, it should not take many minutes to deal with the amendment. I hope that the Government will accept it or agree to consider the point that it raises, which is that the local standards committee may not have a majority of its members composed of members of the executive of the authority.

I do not know what the Government intend by way of regulations in regard to this aspect, but it seems to me that if an authority is to have a standards committee that is representative of all the members of the authority, and given that the majority of members of the authority will not be on the executive, it follows that members of the local authority executive should not have a majority on the standards committee.

It is a straightforward and simple principle which I hope that the Government can accept. It would help both accountability and transparency in this area if the principle was enunciated. If the Minister tells me that he has in mind to have something such as this in regulations, I shall be happy to take the matter no further. However, I may have to think about it if he does not tell me that. I look forward to his reply with interest. In the meantime, I beg to move.

Lord Whitty

My Lords, I understand the noble Lord's concern. It is our intention in this context to maintain on the face of the Bill as much flexibility as possible for local authorities—which, of course, is normally the noble Lord's own plea. We are mindful that we do not want executive dominance and therefore we have included the requirement that there should be an independent member. Clause 48(5) includes a specific provision that prevents an elected mayor or executive leader being a member of the standards committee, and it also excludes any member of the executive from being its chair.

Alongside those provisions are references to at least one independent member being appointed to the standards committee, although, of course, local authorities could choose substantially more than one. There is also a reference to the fact that there should be at least two elected members on the standards committee to ensure that the council as a whole has ownership of that committee.

We believe that these safeguards provide sufficient guidance to ensure that councils are reasonably aware what the nature of the standards committee should be, but allow them to retain some choice as regards the precise composition of the committee in the light of their particular circumstances.

It is true that we will need to bring forward regulations in this area, although we do not want to be too prescriptive in the regulations. On the other hand, were there to be evidence of domination by the executive, we might bring forward such regulations in the light of experience. We would certainly have the power to do so under the Bill. For the moment, we should leave it flexible and leave it to the good sense of councils to decide on the composition of their standards committees.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for that reply. I wish I could be as confident as he is that his aspirations in this particular area will be borne out. I have to inform him, as a matter of regret, that I have heard of one authority planning to have a standards committee of 15 members, nine of whom will be members of the executive. I am concerned and I am not as hopeful as he is that the high standards we ought to be able to expect from all local authorities will necessarily flow from this Bill, as it is at present drafted. I do not wish to pursue that any further at this stage. I shall consider what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Written allegations]:

Lord Dixon-Smith moved Amendment No. 71:

Page 33, line 16, at end insert— ("(5) Where a relevant Standards Board decides that any allegations made under this section shall not be investigated, it shall give its reasons in writing.").

The noble Lord said: My Lords, this amendment raises a small point. The Bill, as drafted, permits people to make complaints in the form of written allegations to the standards board. The standards board has to consider those allegations. The Bill, as drafted, says nothing about having to make any form of written response as a result of those allegations, particularly if it decides not to pursue them. It might be argued that I am being unreasonable once again. I should hope that it would be the case that the standards board would automatically write to say whether or not it was going to undertake an investigation and why. I suspect that the Minister will tell me that is to be the case. If he tells me that it will be the case, then it will be. We have had this debate before, but what is said in the Chamber matters. It is right that a person who makes allegations does receive a response. Equally, I am sure that it is right that the standards board, on considering written allegations, will say, "There is not enough here to warrant investigation".

Unfortunately, when one considers some of the things that have happened in local government over the past 10, 15, 20 or more years, one might have wished that some such procedure as this were in place. If there had been such procedure, perhaps some of the troubles we have had might have been prevented. This is intended to be helpful. I look forward to the Minister's reply. I beg to move.

Lord Whitty

My Lords, I would never accuse the noble Lord of being unreasonable. We envisage that the board would reply in writing to the complainant if it was not to proceed with the investigation. We would expect that any such notification should state why the board did not consider it appropriate to investigate. Therefore, we are at one with the noble Lord on that.

I accept that it might help if there were in the Bill a provision to increase the accountability of the standards board. I should like to take away this amendment and consider whether to make that clear. I do take the point about matters in the history of local government where an investigation has been turned down without any investigation. We ought to cover that issue. I will look at it and consider whether we need to return on that point.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his reply. I am happy to await the outcome of his consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Conduct of investigations]:

7.15 p.m.

Lord Dixon-Smith moved Amendment No. 72: Page 34, line 16, at end insert (", or to a former member or co-opted member.").

The noble Lord said: My Lords, Clause 54 deals with investigations by ethical standards officers. It occurred to me that sometimes these investigations might cover a period quite close to an election or just after an election. Therefore, the investigation ought to be able to consider behaviour that was relevant to former members in that particular situation. It is a somewhat dubious area because it seems that the only sanction an ethical standards officer has is to suspend a member. Of course, one cannot suspend a former member.

There is a more significant background issue that the standard of behaviour of members, both past and present, is very much what makes up the ethos of an authority. If an investigation were to run wide and require the examination of behaviour by former members, it would be unfortunate if it could not do so. Therefore, I have tabled Amendment No. 72. I beg to move.

Baroness Farrington of Ribbleton

My Lords, I thank the noble Lord, Lord Dixon-Smith, for drawing our attention to this matter and for his helpful comments. We will look at ways of putting it beyond doubt that former members and co-opted members are included in all references to members in relation to investigations and case tribunals. We shall need to return to the House at a later stage with proposals. I hope that the noble Lord is able to withdraw his amendment.

Lord Dixon-Smith

My Lords, I thank the noble Baroness, Lady Farrington of Ribbleton, for her response. I am used to being banged around a hit before I get anywhere at all. I am grateful to the noble Baroness for that. I look forward to the results of her consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dixon-Smith moved Amendment No. 73 Page 34, line 17, leave out within the period of five years ending with that time.").

The noble Lord said: My Lords, this is a simple amendment. The Bill, as drafted, would permit an ethical standards officer to undertake investigations in an authority where he had been a member provided that an interval of five years had intervened between his leaving the authority and starting the investigation. It might be argued that that is a perfectly reasonable and sufficient interval. I am not quite so sure about that. I know my own weakness. If I had to become an ethical standards officer—heaven forfend—and I had to undertake an investigation at Essex County Council, I am not sure that even after an interval of seven, eight or nine years I would still be unbiased. This amendment is here because I wish to say that an ethical standards officer may not undertake an investigation in an authority where he has formerly been a member. It is a simple point. It does not require argument in any greater detail. I beg to move.

Baroness Farrington of Ribbleton

My Lords, we cannot accept that the current provisions of the Bill are deficient. Clause 54(4) provides that an ESO cannot conduct an investigation in relation to a member of another authority if within the past five years he had been an officer or member. In addition, Clause 54(5) provides that: An ethical standards officer who is directly or indirectly interested in any matter"— irrespective of when it occurred— which is, or is likely to be, the subject of an investigation". must disclose that interest to the standards board and must take part in the investigation. This means that if' an ESO had been a member or officer of an authority that was the subject of an investigation more than five years previously and there was still some issue that could reasonably be expected to influence his conduct of the investigation, the ESO must declare it and not take part in the investigation.

In making our provisions, we have sought to strike a reasonable balance between an outright prohibition, as suggested by the noble Lord, and the requirement to declare all relevant matters. We believe that these provisions taken together provide sufficient protection. I hope that the noble Lord feels reassured and will feel able to withdraw the amendment.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness for her response. Her words do reassure me but I shall need to consider them with a little care before I decide what I finally do about the amendment. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Interim reports]:

Lord Dixon-Smith moved Amendment No. 74: Leave out Clause 59.

The noble Lord said: My Lords, Amendment No. 74 is what I would call a nuclear option with regard to Clause 59 because it seeks to remove the clause from the Bill. I must have been tired when I was preparing for this stage. I could not sit down and work out in detail amendments to Clause 59 to answer my particular concerns about it.

Clause 59 provides for a member to be suspended by an investigating officer if the investigating officer considers that the case is sufficiently serious and urgent to justify that. I do not have any difficulty with that proposition except in one regard. As I read the Bill, the investigating officer can do that on his own. I think that is right. He should have to refer to someone so that there is the opinion of more than one person. He should have to refer to a superior and say, "Look, this is the situation. I think that we should go for an immediate suspension and I would like your sanction for that". I apologise to the House for not being able to devise amendments to the clause to make clear my intention, but I had to table the amendment very quickly after returning from a few days away. I had expected to have a little more time but the exhaustion factor crept in. However, I think that the point I am making is a valid one. If the Minister tells me that he is prepared to consider it, I shall be quite happy with that for today's proceedings. There is time for it to be considered. I beg to move.

Lord Whitty

My Lords, I can understand the noble Lord's weariness by this stage of the Bill. It is difficult to achieve the objective so the noble Lord has decided to seek to delete the clause altogether. I actually believe that the provision meets what he is after.

Clause 59 provides that an ESO may issue an interim report recommending a suspension pending the outcome of a full investigation. The report will be referred to the president of the adjudication committee, who will convene a case tribunal under Clause 62(2) to make a decision. We envisage that these reports will be used very rarely. When an allegation is particularly serious—for example, when there is the allegation of financial misdemeanours—it would be sensible to move the councillor out of that situation on an interim basis. That could mean out of one committee or it could mean out of the whole council. We believe that we need that leeway. But in terms of an individual taking that decision, full-stop, the noble Lord is not right because of Clause 62(2).

Lord Dixon-Smith

My Lords, I am grateful to the Minister for that reply, although I am not completely reassured by it. The investigating officer has the power to suspend the member immediately. The member could remain under provisional suspension without reference to anyone else. I accept that one then has to go through all the rest of the procedure and that that should provide a proper safeguard. However, if it were the case—here I go again with my awkward mind—that the investigating officer had got it wrong, it could do irreparable damage to the reputation of someone through inadvertence. He would not wish to do that. The individual concerned would be immensely hurt if it happened, and rightly so. That is why I felt that it was necessary to have some provision for reference elsewhere before even a provisional suspension took place. Nonetheless, I shall study what the Minister has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

My Lords, perhaps I may intrude just for a moment. Without in any way attempting to truncate debate, I think there is a reasonable chance that we could finish this stage of the Bill by about eight o' clock. If that is the case I suggest that we go straight through. To be fair to those who are waiting to debate the orders, we should do our best to finish by then.

Lord Dixon-Smith moved Amendment No. 75: After Clause 65, insert the following new clause—

POWER TO MAKE RESTITUTION ORDERS

(". Where matters considered by an interim tribunal or a case tribunal are or become the subject of criminal proceedings in a court. it shall be open to that court, in considering any penalty resulting from a verdict of guilty, to apply a requirement, as a part of any penalty, that a restitution order be made so that any loss to the local taxpayer is repaid.").

The noble Lord said: My Lords, in Committee we had an interesting debate about whether it would be possible for the investigations by the ethical standards officer to come up with a recommendation for a restitution order against someone who committed an offence. The Minister went a great distance towards satisfying me on this point. He pointed out, I think with justification, that a restitution order would in effect amount to the kind of judgment that would be made in a criminal case. The laws of evidence in these tribunals would not be as strict as the laws of evidence in a court of law. That is a powerful argument.

I then went on to consider—my wicked mind again—what would happen in the event that someone commits a major financial impropriety which disadvantages the local taxpayer. The ethical standards officer investigating that would suspend the member. But if the case was of that severity, it would be likely to finish up in court anyway, which was the other arm to the Minister's argument as to why we do not need my restitution order. I then tried to find out whether in a case of this nature there was a penalty in the event of a guilty verdict which would involve a restitution order. We are familiar with such orders with regard to drugs and some other crimes. But no one has been able to tell me whether, in a case of this kind of financial malfeasance against a local authority, a restitution order is presently available to a magistrates' court against a guilty party.

I believe that there should be such a possibility. It may not always work—we are all familiar with the problem of unpaid fines against particular individuals. But I do not think that an individual should be able to gain illicitly at the expense of the local taxpayer. If a person is found guilty of so doing, a restitution order should be possible. The amendment is designed specifically to make that a possibility, because I could not find any such provision. If the Minister assures me that such a penalty is presently available and could be used, I shall happily withdraw the amendment. I beg to move.

7.30 p.m.

Lord Whitty

My Lords, I think I am able to satisfy the noble Lord that the mechanisms already exist. It is not the intention that the ethical framework will deal with criminal issues. Where criminal misconduct is suspected, the matter will be passed to the police or the appropriate authority. However, I assure the noble Lord that in those criminal cases that come before the court, where the actions of a councillor have resulted in financial loss to the authorities, they can already order restitution from the councillor if they consider it appropriate.

Nor does that prevent an authority from separately seeking to recover losses arising from misconduct, which it may do either by seeking a compensation order in criminal cases or through civil proceedings. So a number of lines are already available to local authorities to seek restitution. Actually collecting the money, as I pointed out earlier, may be a different matter. But as regards seeking restitution orders and having the means to establish the liability of a councillor, substantial mechanisms are already available to authorities to cover, I believe, all the contingencies about which the noble Lord is concerned.

Lord Dixon-Smith

My Lords, I am happy to hear the Minister's response. He will be pleased to hear that I shall happily refer it to my legal colleagues. On the assumption that he is right—I am sure he is and pay him absolute credit—it seems that they have learnt, as indeed have I, from the tabling of this amendment. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved amendment No. 76: After Clause 67, insert the following new clause—

PECUNIARY PECUNIARY INTERESTS OF MEMBERS OF LOCAL AUTHORITY

(" . The provisions of Appendix 1 of Department of the Environment Circular 16/92 shall, with effect from the enactment of this Act, extend to persons whose pecuniary interest arises solely from holding a lease of a residential property.").

The noble Baroness said: My Lords, this is the first of two proposed new clauses. Noble Lords will not be surprised that the Bill is being used for some moderately tentative exploration as to whether a couple of local government issues might be dealt with in the context of the Bill as we have the opportunity.

The first is the question of pecuniary interests. Noble Lords will be aware that members have a duty to declare a pecuniary interest in a matter which is being debated, to take no part in the consideration of the matter, and not to vote without the dispensation of the Secretary of State. There are, as I understand it, three general dispensations: for members of local education authorities whose children are in full-time education; for members who are considering questions concerning the payment of statutory sick pay; and for members who are tenants of unfurnished accommodation. The last is the relevant dispensation.

The circular referred to in the amendment allows those tenants to take part in proceedings when a pecuniary interest arises from a tenancy, contractual or statutory, of a dwelling that has been let unfurnished. The dispensation is not unlimited. It extends only to considering, discussing and voting on matters concerning housing function affecting the whole or a part of the area. It does not apply when the pecuniary interests of the member would be different from those of a significant number of tenants who are not members, and it does not allow a member to vote on rents when the member's rent is in arrears for a given period.

My point is a short one. I appreciate that it is possibly not appropriate for primary legislation; nevertheless, I believe that it is worth raising. It is that, after many years of the right-to-buy, there are fewer tenants—given the transfers that have taken place, there are also fewer tenants of local authorities—and more leaseholders. There are occasions on which an authority must consider matters affecting the general body of its leaseholders and where their position should be on all fours with those of the local authority's tenants. The purpose of this amendment is to ask the Government whether they might consider extending that exemption and in effect bring it up to date. I beg to move.

Baroness Farrington of Ribbleton

My Lords, the noble Baroness has identified the fact that the existing rules on registration and declaration of interest and the corresponding general dispensations are rather complex. They are made up of a varied collection of guidance, regulations and statutory instruments and are potentially confusing for councillors. The issue needs addressing so that the rules can be clarified and simplified.

Under the new ethical framework, we are proposing that the rules on registration and declaration of interest should become part of the code of conduct for members. Alongside this, we have already made provision in Clause 67 for the standards committee to take on the role of considering dispensation requests. Where it remains appropriate, we would envisage that any general categories of dispensation, such as the one to which the noble Baroness has drawn attention, might also be covered in the code of conduct. As a consequence, we intend to bring forward suitable amendments at a later stage to repeal or disapply the existing legislation.

The amendment raises a useful question about the types of interest where a general dispensation may still be required that we shall need to consider in developing the code of conduct. Because the existing rules are to be repealed, the amendment will prove unnecessary. I therefore hope that the noble Baroness will feel able to withdraw it.

Baroness Hamwee

My Lords, that reply is helpful in explaining the Government's approach. I hope that the position of leaseholders will be covered in an appropriate fashion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 77: Alter Clause 77, insert the following new clause—

PAYMENTS ETC. IN CASES OF MALADMINISTRATION

(".—(1) In section 31 of the Local Government Act 1974 (Commission for Local Administration: Reports on investigations: further provisions), for subsection (3) substitute—

"(3) In any case where it appears to an authority that a person has suffered injustice as a consequence of maladministration by that authority, following—

  1. (a) an investigation of a complaint by that person by the authority, using the complaints procedure of that authority; or
  2. (b) consideration of the possibility of a local settlement of a complaint by that person to a Commissioner for Local Administration; or
  3. (c) consideration of a report laid before that authority under subsection (2) or (2C) above; and that, as a result of that injustice, it appears to the authority that a payment should be made to, or some benefit should be provided for, that person, the authority may incur such expenditure as appears to them to be appropriate in making such a payment or providing such a benefit."").

The noble Baroness said: My Lords, this is the second of my proposed new clauses raising matters allied to the Bill but not directly dealt with by it. The purpose of the amendment is to deal with the issue of compensation to a complainant.

Currently, a local authority is allowed to incur expenditure in making a compensatory payment only if the ombudsman has made a report on the complaint and has found injustice arising from maladministration. The various authorities involved would like to see legislative provision that would allow local authorities to make such payment in circumstances where the authority itself believes that there is justification for the complaint and that compensation would be appropriate. I understand that there is a good deal of uncertainty as to whether authorities actually have the power to make payment in such circumstances.

The kind of situation I am suggesting is, for example, where a complaint has been investigated under the authority's own complaints system and the authority has found the complaint to be justified without the matter being taken to the local ombudsman; or where settlement is negotiated locally after a complaint has been made to the ombudsman but before the ombudsman has made a finding of maladministration causing injustice. ombudsman but before the ombudsman has made a finding of maladministration causing injustice. That would encourage local authorities to settle complaints at local level wherever possible, provide a speedier resolution for complainants and also save resources, because the council and ombudsman would then be left to concentrate on the more difficult cases. I am sure that all noble Lords would encourage councils to have robust internal complaints systems. I hope that the Minister can help us to overcome the uncertainty about the payment of compensation in the situation that I have outlined. I beg to move.

Baroness Farrington of Ribbleton

My Lords, the amendment moved by the noble Baroness would help to overcome any uncertainty as to whether the powers that she seeks already exist. We are aware that the amendment has the full support of the LGA and the Local Government Ombudsman. The Government support the efforts that have been made to encourage the local resolution of complaints. Ideally, complaints should be capable of local resolution with recourse to an ombudsman very much as a last resort. Where there are unnecessary obstructions to local resolution the Government fully support taking action. We need to consider how cases of misconduct, which also involve maladministration, that appear before the standards board should he treated and whether there should be consistency with those cases that are dealt with solely by the ombudsman or the authorities themselves.

Perhaps I should alert the noble Baroness to a point raised by our legal advisers about whether such an amendment is within the scope of this Bill. We wish to consider this matter further and may be able to return to it at a later stage. I hope that the noble Baroness feels reassured and is able to withdraw her amendment.

Baroness Hamwee

My Lords, I hope that the legal advice will come down on the side of the matter coming within the scope of the Bill. Given that the Long Title says no more about standards than that the Bill is intended to make, provision with respect to the functions and procedures of local authorities", I believe that the points I have made fall squarely within that terminology, as does the whole of Part III of the Bill. More expert legal minds than mine will be brought to bear on the matter. I am grateful for the Minister's response. Perhaps we can keep in touch on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 78 [Grants for welfare services]:

Baroness Maddock moved Amendment No. 77A: Page 53, line 39, at end insert (", or (d) by way of pilot or temporary scheme").

The noble Baroness said: My Lords, I rise to move Amendment No. 77A and to speak also to Amendment No. 77B. We have tabled these amendments because of our concerns as to how the proposals in the Bill will affect very vulnerable people and work in practice. The Minister is aware that my noble friend Lady Hamwee wrote to him to voice our concerns. We are grateful for the very full reply. The proposed changes to the funding of welfare services will affect a large number of existing recipients of services. The proposals mean very radical changes to the present system, and for that reason we seek further reassurances from the Government.

We welcome the fact that the Government recognise a local authority's wider role in the integration of housing and welfare service provision. The theory of replacing the current system under which welfare services are funded from a variety of sources, mainly housing benefit, with cash-limited grants sounds a logical step. However, many believe that in practice the proposals will prove to be a little difficult and that in the changeover those now in receipt of these services, particularly the elderly, may not get what they have come to expect. Past experience shows that good intentions do not always work out on the ground.

There was so much concern about this matter that when the Government launched their consultation paper the DSS ran out of copies. Over 500 responses to the consultation were received. I understand that the Government have given serious consideration to those responses and have tried to incorporate some of them in the Bill. Although we are short of time tonight, can the Minister clarify, if not now perhaps at a later stage, what changes have been made as a result of representations from other people?

The area of particular concern is sheltered housing. There is a great deal of anxiety among those bodies which are concerned with the management of sheltered housing. The main concern is that the changes will involve a considerable degree of bureaucracy for very small amounts of money and may be very expensive to administer. Following consultations, the Government are working with groups to try to set up a proper framework in which local authorities can administer the new arrangements. We would be grateful if the Government could expand on that, if not tonight perhaps at Third Reading. There is also a particular concern about elderly people now in sheltered housing who receive support by way of housing benefit. Can the Government provide reassurance that existing tenants will not suffer and lose their wardens as a result of the proposed changes?

A further area of concern is the total amount of grant available to local authorities to replace the present expenditure on benefits. We are grateful to the Minister for his clarification that the figures that the Government have bandied about are not set in tablets of stone. We understand that the Government will look carefully at what is being paid out at the moment and adjust their budget accordingly. Since my noble friend's letter to the Minister it has been drawn to my notice that perhaps the changes are being made because of the present legal system under which benefits are paid and the social security aspects of those payments. I would be grateful if the Minister could provide clarification also on that matter.

In conclusion, the Bill provides that the new funding arrangements will be brought into force in different geographical areas at different times. Given the widespread concern about the issues that I have raised this evening, perhaps the Minister will look seriously at the proposals encapsulated in the amendments; namely, that there should be pilots to see how the proposals work in those areas before they are implemented everywhere. We are talking about very vulnerable people, in particular the elderly, young people and those with special needs who require proper help with their housing. I hope that the Minister can meet that need, if not tonight perhaps at a later stage. I beg to move.

Baroness Farrington of Ribbleton

My Lords, with the leave of the House, perhaps I may be permitted to correct an error of omission in my response to Amendment No. 77. In referring to legal advice I should have said that legal advisers had raised a point about whether such an amendment would be deemed by the Officers of the House to be within the scope of the Bill.

Lord Whitty

My Lords, in response to the amendment moved by the noble Baroness, Lady Maddock, we do not want to go down the road of piloting the proposals. We are committed to the Supporting People initiative and want some clarity of objective here. The principles in the Supporting People initiative have been welcomed by those concerned with housing and support services. As the noble Baroness indicated, the vast majority (82 per cent) of respondents were generally in favour of the proposals. Although the full arrangements will be implemented only in 2003, it is important to provide some stability of view as to where we are going. We are working closely with the stakeholders so that we can plan ahead.

However, I recognise the anxieties to which the noble Baroness refers. It is important that the grant from local authorities for supporting people will be at least as much as that which was spent in the previous year in the various budgets which the scheme replaces.

The joint commissioning group engaged on this will be encouraged to maintain continuity of funding at the point of transition. We realise that continuation is a key concern to many users and is, therefore, a priority. The practitioners' group is engaged in considering how we can maintain continuity and reassure people in that regard. I know of the concern of those involved in sheltered housing. The Government are anxious that the role of sheltered housing continues with high quality support services, in particular to vulnerable older people.

However, we need also some degree of flexibility in this area. Responses to the consultation from providers of sheltered housing welcomed the integration of support services into the other services provided to support older people in their homes. Therefore there is need to work closely with providers of sheltered housing so that we minimise any hiccups or discontinuity for older people and smooth the path of support for older people, which would be a better way of identifying priorities in support systems.

The noble Baroness queried the relationship between that system and social security policy. There is a problem of the linkage between the provision of sheltered housing and housing benefit. The Government are determined to see a clear line drawn between basic rent and support services. If one ties accommodation into a benefits infrastructure it does not allow the flexible approach that we hope the new arrangements will deliver.

However, because of the range of difficulties, although rejecting a pilot approach—it gives no certainty of where one aims to get—we are now talking with the stakeholders, the providers so that we have some flexibility as to how the system is introduced. In particular, we are discussing the benefits of phasing in the new scheme so that we can learn from the early stages of phasing. It is similar to piloting but it gives certainty as to where one intends to end up. Phased implementation would help to ensure that the new regime is implemented smoothly and that best practice is shared.

Subject to the agreement of the providers and others involved, we believe that that phased approach would be better than having an open-ended pilot approach which does not give the rest of the local authorities and providers certainty as to where we are going. I hope that the noble Baroness accepts that that will be a better approach and will not pursue her amendment.

Baroness Maddock

My Lords, I am grateful to the Minister for his lengthy reply. I am not sure that I agree with him that a pilot means that one will not do anything at the end of it. A pilot scheme ensures that one puts in place processes and methods that work. From the Minister's reply, I believe that it is the Government's intention not to bring the system into place at one time. With the reassurance that the noble Lord has given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 [Housing benefit]:

[Amendment No. 77B not moved.]

Clause 80 [Allowances and pensions for certain local authority members]:

Baroness Miller of Chilthorne Domer moved Amendment No. 78: Page 54. line 42, leave out ("of an executive").

The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 79 and 80 in the name of my noble friend.

The amendment seeks to delete from the section on allowances and pensions the words "of an executive". To single out councillors who are members of the executive in particular to receive pensions is divisive; and the Bill should not aim to be that. At earlier stages of the Bill, the Minister conceded that under the system other members of the council would have equally important work to do—for example, the chairman of the scrutiny and overview committee. However, the Bill allows for area committees. The chairmen of those committees are likely to spend at least as much time on their work as members of the executive. Chairmen of bodies which come into more contact with the public than does the executive are likely to undertake jobs with longer and perhaps more antisocial hours.

We believe that the council and the independent panel should set the appropriate remuneration, pensions and allowances for members of the council, depending on the structure that they choose. Partnership working—the Government seek to encourage it—may involve the chairmen of the scrutiny and overview committees more than members of the executive, who will be in the council offices, often making decisions.

We believe that the independent panel should set the provision for local councillors with perhaps guidance and input from the council. We do not think that it would be helpful to have anything that further divides councillors. As I read the clause again I was reminded of Animal Farm. Councillors are supposed to be elected to represent the people. If they become long-term professionals, at some point they will become indistinguishable from the officials. It is important that the position as regards all councillors is equitable and that there are not some who are councillors by profession: they have served a long time; they have a pension; and the likelihood of them moving on is remote. There is no provision in the Bill even for a maximum term for those on pensions. For a councillor in his fifties who has served for a long time to receive a pension might be another incentive to stay on. None of these issues has been thought through in the drafting of the provision. I beg to move.

Lord Whitty

My Lords, I am not sure whether I understand clearly the noble Baroness's case. I do not know whether she proposes that fewer people than provided by the clause should have pensions or that the possibility of pensions should be extended to others. In her latter remarks, she seemed to believe that pensions should not be extended to anyone because they encouraged individuals to stay on. As Members of your Lordships' House will know, it is not always pension rights which encourage people to stay on. I suspect that the same applies to councillors.

I understand the anxiety that the provision might be divisive. However, we have to face the fact that if we move to an executive structure many of those executive posts—perhaps by no means all—will effectively be full-time jobs. Although in general the tendency to full-time councillors is not necessarily supported by this side of the House, let alone the other side, the executive function will be equivalent for the time one is on the executive to a full-time job for many executive members. They will, therefore, miss out on pension rights in what would otherwise be their full-time job. It is that situation that we have to address; and we address it here in relation to executive members.

As regards general members of the council, or those who have been but cease to be members of the executive, the same arguments do not apply. If we were to make pensions more available to non-members of the executive, it would encourage a drift towards full-time councillors, which in general we are attempting to resist.

8 p.m.

Baroness Thomas of Walliswood

My Lords, I understand the drift of the Minister's response. However, if, as my noble friend suggested, many members of the council do a considerable amount of work, will there be an option to change the attitude towards pension remuneration? Once the provision is in the Act without guidance attached to it, we might be in difficulty and might have to return to statute in order to make a change.

Lord Whitty

My Lords, the noble Baroness is right. Were we to extend this beyond the executive level, the Bill as it stands would have to be amended in primary legislation. Our position is that this is a facility—not a compulsory one—provided to executive members who would effectively be full-time. We recognise that other councillors would be able to choose whether they are in that position, whereas executive members would be full-time in some situations when they took on the executive position. It is a way of dealing with circumstances which may arise as a result of people taking up particular executive positions. The more general voluntary principle in relation to public service and council service would be appropriate in other circumstances.

With the leave of the House, and as we are dealing with this part of the Bill, perhaps I may mention that it is our intention to table an amendment at a later stage concerning issues relating to other allowances which were raised by noble Lords during the Committee stage. I have written to noble Lords on the Front Bench about that. I am not able to do so today, but I hope to be able to do so during the passage of the Bill.

Baroness Hamwee

My Lords, before the Minister sits down—and I thank him for his last remark—does he agree that we are not talking about equivalent pensions in cash terms for executive and other members of the authority? The pension is likely to be related to the amount that each member receives in salary remuneration. The divisiveness, to which my noble friend referred, is in treatment rather than in cash. I should not like it to be thought that we are suggesting that there should be a cosy financial arrangement for all members, but we want to make the point that equality of treatment is most important.

Baroness Miller of Chilthorne Domer

My Lords, I apologise to the Minister if in my attempt at brevity clarity was forgone. It is plain that I am asking for the independent panel to set the allowances for each council as appropriate in each local circumstance. I ask the Minister to consider that request before the Third Reading of the Bill. As the shadow arrangements have been running for only a short time in the various councils, there is no proof that being an executive member will take more time than being, for example, chairman of the scrutiny and overview committee. The arrangements have not been in place long enough for anyone to know which position will take more time. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 and 80 not moved.]

Lord Campbell of Alloway moved Amendment No. 81: After Clause 82, insert the following new clause—

DISCRIMINATION IN THE PROVISION OF FACILITIES OR SERVICES

(".—(1) A local authority shall not cause or permit discrimination as regards the provision of facilities or services save in respect of counseling, health care, education and in the prevention of the spread of disease.

(2) The Secretary of State may make and. from time to time revise, a code of practice on the discharge by local authorities of the duty under subsection (1).

(3) Any provision of a code of practice under subsection (2) which appears to a court or tribunal to be relevant to any question arising in any proceedings in connection with the application of the duty under subsection (1) shall be taken into account in determining that question.

(4) A code of practice or a revised code of practice under this section shall be contained in a statutory instrument which shall be laid before, and subject to approval by resolution of, each House of Parliament.

(5) For the purposes of this section discrimination in the provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities or services not generally available.").

The noble Lord said: My Lords, I rise to move the amendment, which was accepted by the Table as complementary to the Bill as amended in Committee. However, when I spoke to it on Report on Monday, 28th February, on Amendment No. 1 to Clause 2, it was suggested that it should be withdrawn as preempting negotiations and discussions as to general amendments to this Bill and perhaps another Bill to be tabled in due course.

Of course, such discussions must ensue, but, surely, not in total secrecy at a late stage of a Bill so as to preclude the due exercise of the revisory role. The amendment proposes the introduction of a new type of prohibition on the decision-making by a local authority, whether an LEA or not, which is wholly compatible with the European Convention on Human Rights. It is a prohibition of positive discrimination in favour of any group of persons, irrespective of any particular sexual orientation, as regards the provision of facilities and services not generally available. This is not the occasion on which to deploy the argument as recorded in Monday's Official Report.

It is not known whether the Government in these discussions and negotiations are proposing any type of prohibition on the decision-making of a local authority. That is the problem which requires to be addressed. These negotiations—attended by certain noble Lords to my knowledge on the Cross Benches, but there may be others, and a right reverend Prelate, but there may be others—are held in strict confidence behind closed doors, albeit that already as a result of these negotiations amendments have been tabled; for instance, Amendment No. 86 by the noble Lord, Lord Whitty, and Amendment No. 235 to the Learning and Skills Bill by the right reverend Prelate the Bishop of Blackburn. As yet, no amendment has been tabled as to the prohibition on any kind of decision-making by a local authority, save by this amendment and Amendment No. 82, which I shall move in due course.

The House as a whole—and I suspect the usual channels, but of course I do not know—is kept in the dark as to the Government's intentions, other than one intention to repeal section 82. Already, part of section 82 relating to teaching (section 2A(1)(b) of the Local Government Act 1986) could be subsumed by Amendment No. 235 to the Learning and Skills Bill by amendment to the Education Act. But what about the other part, section 2A(1)(a), which could well be subsumed by Amendments Nos. 81 or 82, or by any other amendment which imposed a statutory prohibition on a local authority concerning decision-making?

We have heard a lot of talk about codes of practice without knowing whether they are to have legal efficacy or none. No draft of any implementing document, code of practice, regulations or anything has been laid before this House. We are still kept in the dark. We are now on the second day of Report and negotiations continue in confidence. Shall we be told one day, perhaps today, where the Government stand on this issue and on the merits of this amendment, apart from the objection that it ought not to be discussed because it is premature? Shall we be told on Third Reading that new amendments will be tabled by the noble Lord, Lord Whitty, which represent where the Government then stand as a result of the negotiations? Will then the drafts of any relevant implementing documents be available for us to see?

Is it at all satisfactory, I respectfully ask at this hour of night, that such amendments should he tabled or that such amendments, if tabled, should be first tabled on Third Reading? According to our procedures, we will have foreclosed upon effective scrutiny.

Having said that, I wish to point out that there is no suggestion whatever of any improper motive or impropriety, in particular so far as concerns the noble Lord, Lord Whitty. However, this is an unusual practice. It seems to have crept up quite suddenly on this House. I hope that noble Lords will agree that it needs to be watched carefully. I gave the noble Lord notice that I was going to raise this point so that, if he was so advised, he would be able to deal with it.

Although I understand that the amendments to be tabled by the Government on Third Reading would need to be complementary to the Bill as it stands and that Clause 82 may only be rejected by another place, I do not understand why in principle Amendment No. 81 should not be debated on its own merits. Why must such a debate be precluded on the grounds that, having regard to the negotiations in train, it is premature?

In order to correct the record, I should like to make one point on the drafting which was taken against me in error at the previous stage. I do not believe, as was suggested by the noble Earl, Lord Russell, that the amendment ran into trouble. The difficulty that the noble Earl sought to identify is clearly avoided by subsection (5) of my amendment, which refers to, provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities not generally available". There is nothing to prevent the noble Earl's PE teacher from providing a slightly different regime for someone with a club foot. Furthermore, I am prepared to address again the matter of definition with the noble Earl and any other noble Lord, if so required.

In due course I shall, as I always do, defer to the opinion of the House should any noble Lord wish to express such opinion. In the meantime, I beg to move.

Lord Dixon-Smith

My Lords, as the Member of this House who on Monday ran himself into the deepest trouble over the intervention of my noble friend Lord Campbell of Alloway, perhaps I may say that we are now in effect a working week further down the road on this issue. On Monday I said that my noble friend had raised a number of significant issues.

What I have heard since then, and what causes me concern, is that we now know that discussions are taking place, but that my noble friends who are deeply interested in this subject are not involved in those discussions. It is a fact that, when one is attempting to achieve an agreed conclusion in an area where there are differing points of view, agreement is achieved by discussion with all the parties and not only with some of them. Of course, one must accept that in politics, might can be right. It may be that if a sufficient number of people can, so to speak, be squared, then the views of my noble friends can be discounted. However, I do not believe that that would be the most appropriate way to handle the matter.

Having said that, I had never assumed that these discussions would be easy. Still less did I expect conclusions to emerge. What normally happens in this kind of situation is that, in the event that a government are in disagreement, the government themselves attempt to put down amendments and seek a conclusion. However, we have not seen that. It may be that the matter is to be dealt with in another place. If that is the case, then we will have to deal with it when it returns to this House.

I say to my noble friend that I hope that he will not press his amendments tonight. However, I shall certainly support him in his argument that all interested parties in this debate should be involved in the discussions if we are to arrive at an agreed conclusion.

8.15 p.m.

Lord Whitty

My Lords, this debate is a little strange. I understand some of the concerns expressed by the noble Lord, Lord Campbell of Alloway, but his remarks and those of the noble Lord, Lord Dixon-Smith, reflect some of the misunderstanding of the Government's position here. I take the strictures made by the noble Lord on late amendments. Indeed, on occasion I have expressed my own irritation at the position Ministers find themselves forced into either by this House or through outside circumstances. However, as regards this Bill, perhaps I should make it clear that the Government have noted the views taken by this House on what is referred to in shorthand terms as section 28, and I do not intend to bring forward late amendments relating to that point.

For similar reasons, when the noble Baroness, Lady Young, shortly moves her consequential amendment, I shall certainly not oppose it because all the amendments are the logical results of the decision previously taken by this House. It is therefore the case that I shall not ask the House to reconsider that matter until we have received the view of another place.

An entirely parallel area relates to the education concerns that were widely expressed in that debate, but which cannot be dealt with appropriately in this Bill, because it does not apply directly to schools in England and Wales. Therefore, in the context of our education legislation, we have engaged in discussions with the Churches and with others as to whether there is a satisfactory consensus that could be brought forward in relation to education concerns in the education legislation which is not yet before this House.

Baroness Blatch

My Lords, I am grateful to the noble Lord for giving way. Is the noble Lord saying that discussions are taking place on the Bill with which I am involved that totally exclude noble Lords on these Benches—that I am not privy even to discussions as to whether an amendment will be tabled to my Bill on this subject?

Lord Whitty

My Lords, as was indicated, a commitment was given by myself and referred to by my noble friend Lady Blackstone that the Secretary of State for Education would consult with the Churches and others as to whether we could bring forward an amendment. That is the normal way for governments to consult with interested parties. At this stage, that consultation is not a multi-party discussion. Noble Lords opposite will be in a position to consider such amendments as we are able to bring forward in due course. Those amendments will have already achieved broad agreement with the Churches and others.

I believe that we are confusing several different issues here. We are confusing those issues that are appropriate to this Bill, some of which are being pursued separately in discussions—I think that the word "negotiations" suggests too institutionalised a form of discussion—between my colleagues in the Department for Education, the right reverend Prelate and others. It is hoped that the results of those discussions will be acceptable to this House when they are brought to fruition. They will then be dealt with in the Learning and Skills Bill. That is an entirely separate matter. It will then be dealt with in the normal way in the context of that Bill.

I turn to the amendments before us in the name of the noble Lord, Lord Campbell. I do not agree with the first amendment, Amendment No. 81, but it is appropriate in this Bill. The amendment introduces a general non-discrimination clause of a rather particular kind in relation to the activities of local government. In my view, the amendment is unworkable. One has only to consider the range of services applied by local authorities to recognise that they depend critically on being able reasonably and legitimately to discriminate between different sections of their community in different contexts. I believe that that point was made previously by the noble Earl, Lord Russell.

Sometimes that involves conflicting priorities in the allocation of scarce resources, and sometimes it means providing to elements of the community services and resources which are not provided to others. So long as the local authority acts reasonably in that respect and within the law, clearly that is an essential task of local authorities. In my view, Amendment No. 81 would cut across the whole of that activity by local authorities so that they would not be able to discriminate, for example, in relation to the elderly, the disabled and, indeed, the gay and lesbian community in the provision of any such services. I believe that that would gravely restrict local authorities. Therefore, if the amendment were taken literally and applied to the whole range of local authority services, I believe that it would be unworkable.

I turn to Amendment No. 82, to which the noble Lord also spoke. I believe that in a sense it is not appropriate because it does not acknowledge the respective legal responsibilities of school bodies and of local education authorities. It seeks to ensure that a local education authority does not cause or permit a school to use certain material as part of its sex education curriculum. Leaving aside the definitional problems of what is and is not appropriate and what the terminology used by the noble Lord means, we could find ourselves in deep water on that issue. However, the point that I wish to make is that, as a result of the Education Reform Act 1988, it is not a matter for the local education authority but a matter for governors and schools to decide what material should be used. That is why I believe that the noble Lord's second amendment is not appropriate for this Bill and why aspects of it are being addressed in a different context.

I take the noble Lord's intentions seriously and I understand that he has proposed these amendments in order to help us through this matter. However, I do not believe that the first amendment is workable or the second appropriate to this legislation. I hope that he will not pursue them.

Baroness Young

My Lords, before the noble Lord sits down, perhaps he will clarify what he said about the arrangements on this Bill. Do I understand that negotiations have taken place between the Government and the Churches and others not named as I understand that no one, at any rate from this side of the House, has taken an interest in this matter? Do I understand that an amendment will be tabled to the Learning and Skills Bill which has a cross-over effect on Clause 82 of the Bill currently under discussion? Is that supposed to be an example of transparency or confusion?

Lord Whitty

My Lords, there may be confusion among some noble Lords opposite. The matter has never been confusing to me. The education legislation is appropriate for education and local government legislation is appropriate for local government services. The discussions to which I refer, and which the noble Baroness and others tend to refer to as "negotiations", quite clearly are discussions. Their existence has been reported in the newspapers and elsewhere and they have been referred to by myself and by my noble friend Lady Blackstone. The discussions are a continuation of the normal discussions between the education department and representatives of the faiths, particularly the Church of England, which has so many schools to which this legislation would apply.

Baroness Park of Monmouth

My Lords, perhaps I may put a question to the Minister for clarification. It seems to me that in this particular clause, put forward by my noble friend, we are discussing initiatives which might be taken by local authorities. I understand that that has happened on many occasions in the past when they have produced material, spent money on producing it and then presented it to the schools. It seems that that is a local government issue, not an educational issue.

Lord Whitty

My Lords, the education legislation makes clear that decisions regarding material used in schools for sex education is a matter for the governors of schools. Their responsibilities are governed by education legislation and not by this Bill or by other local government legislation.

I finalise my response to the noble Baroness, Lady Young. If those discussions reach fruition and we are able to come forward with an amendment which has broad acceptance among the people with whom the Government rightly have discussed the matter—namely, the providers of education and those representing the interests of the faiths and others—we shall do so in that context and shall deal with it in the normal way. If I have to say it again, I shall say it again: that is a different issue from the one on the face of this Bill.

I turn to the amendment in the name of the noble Baroness, Lady Young, carried by the House the other day. At this late stage, I do not seek to bring forward a further amendment, as the noble Lord, Lord Campbell, feared I would. I feel that we are now in a position where the current view of this House is clear and another place must take cognisance of that view. We shall need to consider the matter after the other place has done so. That is the position. I do not know whether I can be clearer than that. I hope that it is clear enough for noble Lords.

Lord Campbell of Alloway

My Lords, I am grateful to all noble Lords and to the noble Lord, Lord Whitty. There is a problem here. I take the view—perhaps quite wrongly—that it is right to amend an element of section 403 of the Education Act and to do certain things which have been suggested already and which, I believe, I supported in Committee. That is my personal view.

However, it is also my personal view that there should be a power of prohibition to prevent the local authority doing certain things. I express the matter quite generally. I dealt with the issue in my opening remarks, but I am in the dark. Is the Government's attitude that there should (as is my approach) be prohibition or that there should not? This is a problem; there is a nexus between the two views. It comes to the fore clearly when my noble friends who hold distinguished positions on the Front Bench do not appear to have been involved in those negotiations. I did not know that. We do not know much on the Back Benches about what goes on on the Front Bench, but I suspected that that was the case. It seems to me that there is something wrong about that: not wrong in an improper sense but something that should perhaps be considered and put right.

At this hour I shall not take issue with the noble Lord on his misinterpretation of the definition clause. Perhaps we may discuss that on some other occasion. I agree with the noble Lord that, of course, no one must table an amendment which is inconsistent with a Bill as amended in Committee. That would be contrary to our procedures. I thank the noble Lord for what he said. I hope that he will reconsider through the usual channels the point of substance on procedure. I accept the noble Lord's assurance and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 82: After Clause 82, insert the following new clause—

SEXUALLY EXPLICIT MATERIAL IN MAINTAINED SCHOOLS

(" .—(1) After section 2A of the Local Government Act 1986 insert—

"Sexually explicit material in maintained schools.

2B.—(1) A local authority shall not cause or permit material of a sexually explicit nature to be available in any maintained school without the approval and the consent of the Board of Governors.

(2) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably he drawn from the evidence before it.

(3) In subsection (1) "maintained school" means a maintained school or maintained nursery school within the meaning of the School Standards and Framework Act 1998.".

(2) In section 12(3) of that Act, after "Part II" there is inserted "(other than section 2B)".").

The noble Lord said: My Lords, in essence, this is the same sort of problem. Those negotiations also give rise to the problem of definition. It was said in Committee that there was a problem in relation to the definition of "sexually explicit material". Surely nobody would want a lot of the material that we have seen in the exhibition to be made available. Call it what you will, it does not, in fact, involve a definition in law which requires the view of the courts or the opinion of the Attorney-General.

I have particularly drafted the amendment so that it should be for the view of the board of governors and it is entirely a matter for them and for the parents who sit on the board. They decide what is sexually explicit. I should say to the noble Baroness, Lady Hamwee, that the point is taken that the board of governors could delegate that matter to a sub-committee. If the governors allow it, so be it, whatever anyone else thinks about the material. But if they prohibit it and say "No", then that is a classic example for my approach. The local authority should then be prohibited by an express prohibition from making that material available in schools.

Your Lordships may well think that in principle such a prohibition is desirable. That is, with respect, my personal opinion. I beg to move.

Lord Whitty

My Lords, I made the main point on discussing the previous amendment. The noble Lord's amendment seeks to prohibit local authorities from making material available in schools. Local authorities in England and Wales do not have that ability. That is a matter for the governors. Therefore, the amendment is inappropriately targeted. I could have a discussion—although I shall not do so at this time of night—as to whether local authorities should, in principle, have a power of prohibition. But as the amendment is phrased it refers to making the material available. That is a matter for the governors of the school and not for the local authorities. Therefore, the amendment is not phrased in a way which is appropriate for this Bill.

Lord Campbell of Alloway

My Lords, perhaps I may have an opportunity to consider what the noble Lord has said and ask for leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 84 [Wales]:

Lord Whitty moved Amendment No. 83: Page 57, line 31, at end insert ("or paragraph 6 of Schedule 1)").

On Question, amendment agreed to.

Clause 86 [Commencement]:

Baroness Young moved Amendment No. 84: Page 58, line 4, leave out from first ("the") to end of line 5 and insert ("repeal of paragraph 63 of").

The noble Baroness said: My Lords, this is a technical amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 85 not moved.]

Schedule 1 [Executive arrangements: further pro vision]:

Lord Whitty moved Amendment No. 86: Page 61, line 10, at end insert—

("Overview and scrutiny committees: education functions

6.—(1) In this paragraph "relevant English authority" means a local authority in England which is a local education authority.

(2) This paragraph applies to an overview and scrutiny committee of a relevant English authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.

(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant English authority if the sub-committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.

(4) An overview and scrutiny committee or sub-committee to which this paragraph applies must include—

  1. (a) one or more persons appointed as representatives of the persons who appoint foundation governors for Church of England schools in the area of the authority concerned, and
  2. (b) one or more persons appointed as representatives of the persons who appoint foundation governors for Roman Catholic Church schools in the area of the authority concerned.

(5) A member of an overview and scrutiny committee or subcommittee appointed by virtue of sub-paragraph (4) is to be entitled to vote at a meeting of the committee or sub-committee on any question—

  1. (a) which relates to any education functions which are the responsibility of the authority concerned's executive, and
  2. (b) which falls to be decided at the meeting.

(6) The Secretary of State may by directions to a relevant English authority require any of the authority's overview and scrutiny committees or sub-committees to which this paragraph applies to include persons who are appointed. in accordance with the directions, as representatives of the persons who appoint foundation governors for such of the foundation or voluntary schools in the authority's area which are not Church of England schools or Roman Catholic Church schools as may be specified in the directions.

(7) Directions under sub-paragraph (6) may make provision with respect to the voting rights of persons appointed in accordance with such directions.

7.—(1) In this paragraph "relevant Welsh authority" means a local authority in Wales which is a local education authority.

(2) This paragraph applies to an overview and scrutiny committee of a relevant Welsh authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.

(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant Welsh authority if the sub-committee's functions under section 19 relate wholly or partly to any education functions which arc the responsibility of the authority's executive.

(4) An overview and scrutiny committee or sub-committee to which this paragraph applies must include one or more persons appointed as representatives of the persons who appoint foundation governors for the foundation or voluntary schools in the authority concerned's area which are specified in directions made by the National Assembly for Wales as schools which have a character connected with a particular religion, or particular religious denomination, specified in the directions.

(5) Sub-paragraph (4) does not apply if there are no foundation or voluntary schools in the authority concerned's area which are specified in directions under that sub-paragraph.

(6) A member of an overview and scrutiny committee or subcommittee appointed by virtue of sub-paragraph (4) is to be entitled to vote at a meeting of the committee or sub-committee on any question—

  1. (a) which relates to any education functions which are the responsibility of the authority concerned's executive, and
  2. (b) which falls to be decided at the meeting.

(7) The National Assembly for Wales may by directions to a relevant Welsh authority require any of the authority's overview and scrutiny committees or sub-committees to which this paragraph applies to include persons who are appointed, in accordance with the directions, as representatives of the persons who appoint foundation governors for such of the foundation or voluntary schools in the authority's area which are not specified in directions under sub-paragraph (4) as may be specified in directions under this sub-paragraph.

(8) Directions under sub-paragraph (7) may make provision with respect to the voting rights of persons appointed in accordance with such directions.

8.—(1) In this paragraph "relevant authority" means a local authority which is a local education authority.

(2) This paragraph applies to an overview and scrutiny committee of a relevant authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.

(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant authority if the subcommittee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.

(4) The Secretary of State may by regulations require an overview and scrutiny committee or sub-committee to which this paragraph applies to include one or more persons elected, ill accordance with the regulations, as representatives of parent governors at maintained schools in the area of the relevant authority concerned.

(5) Regulations under this paragraph may make provision for—

  1. (a) the number of persons who are to be elected in the case of any relevant authority,
    2. 743
  2. (b) the procedure to be followed in connection with the election of such persons and the persons who are entitled to vote at such an election.
  3. (c) the circumstances in which persons are qualified or disqualified for being so elected or for holding office once elected,
  4. (d) the term of office of persons so elected and their voting rights,
  5. (e) the application to any such committee or sub-committee, with or without any modification, of any enactment relating to committees or (as the case may be) subcommittees of a local authority,
  6. (f) such other matters connected with such elections or persons so elected as the Secretary of State considers appropriate.

(6) Regulations under this paragraph may also make provision—

  1. (a) enabling the Secretary of State to determine, where he considers it expedient to do so in view of the small number of maintained schools in the area of a relevant authority, that the requirement imposed on the committee or sub-committee by virtue of sub-paragraph (4) is to have effect as if it referred to representatives of parents of registered pupils (rather than representatives of parent governors) at those schools,
  2. (b) for any regulations under this paragraph to have effect, where the Secretary of State makes any such determination, with such modifications as may be prescribed.

1998 C 31

9. Expressions used in paragraphs 6 to 8 and the School Standards and Framework Act 1998 have the same meaning in those paragraphs as in that Act.").

On Question, amendment agreed to.

Schedule 2 [Election of elected mayor]:

[Amendments Nos. 87 and 88 not moved.]

Schedule 4 [Minor and consequential Amendments]:

Baroness Young moved Amendment No. 89: Page 67. leave out lines 41 to 44.

On Question, amendment agreed to.