(13 years, 3 months ago)
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18:03 - Division on Amendment 109B - Ayes: 137 / Noes: 220 - Amendment 109B disagreed.
Lord Taylor of Holbeach
“(3A) Before making or varying a delegation under subsection (1) above, a Minister of the Crown must consult—
(a) each London borough council,(b) the Common Council, and(c) the Assembly.”
Lord Taylor of Holbeach
My Lords, Ministers already have the power to delegate functions to the mayor and the London Development Agency under the Regional Development Agencies Act 1998. We believe that it is right that Ministers continue to have such a power once the LDA is abolished. Through the London reforms in this Bill, the GLA will be gaining significant new powers and responsibilities, including activities from the LDA, enabling London itself to meet the strategic challenges facing the capital.
There may be instances in future where it makes sense for the mayor to play an active role in the delivery of national programmes, through a power of delegation, to ensure that these programmes can be better tailored to London’s specific circumstances. However, we are conscious of the concerns expressed in the other place about this power and the risk that it could marginalise the role of London boroughs, and of the amendments tabled in Committee by my noble friends Lord True and Lord Jenkin, which we did not have time to discuss. In response to these concerns, we are proposing through government Amendment 105 to require a Minister to consult London boroughs and the London Assembly before the use of this power to delegate functions. This will ensure an opportunity for debate and dialogue within London about the appropriateness of any proposed delegation of a ministerial function to the mayor prior to the delegation being made.
Amendment 106, which was tabled by my noble friend Lord True, would go further than this by requiring a Minister to consult boroughs specifically about whether the function could be more appropriately and effectively conducted at a more local level and then to lay a Statement before Parliament if boroughs believe that they are better placed than the mayor to undertake the function. While I fully understand my noble friend’s reasoning, I do not believe that such detailed stipulation is necessary. It should be readily apparent from the statutory consultation whether boroughs have concerns about the mayor exercising a function that they are better placed to undertake. If the function was of sufficient importance, one could see Members of both Houses wanting to raise the issue with the relevant Minister.
I reassure my noble friend that this Government have striven to ensure broad consensus between the mayor, the Assembly and the boroughs about the future direction of London’s governance and, if I may say so, it is exemplified by the reforms in this Bill. We will continue to do so in future. It is vital that both tiers of London government—the GLA and the boroughs—fully accept each other’s democratic mandate and remit and that there is consensus about any use of this power. I therefore ask my noble friend not to move his Amendment 106 in favour of the Government’s Amendment 105, which I beg to move.
Lord True
My Lords, as the Minister said, I have Amendment 106 in this group. I listened very carefully to what he said and I have had the opportunity of talking about this matter with my noble friend Lady Hanham. None the less, I must press him a little because, as he acknowledged in his remarks, we discussed the matter contained in this amendment earlier today: it is the localist deficit that remains in London as a result of this legislation. I of course acknowledge the good relations between the mayor, the boroughs and the other London institutions, but these good relations are not fixed for all time. My amendment addresses future arrangements and future occasions on which the Government may decide that they wish to delegate functions. I believe that, where possible, a truly localist Government would wish to delegate those functions to the most local level practical and in London, in many cases, that will be London boroughs, although we have heard many times in these debates that Ministers would like powers to be delegated even below the level of boroughs and principal authorities.
Lord Beecham
My Lords, I hesitate to trespass on to the territory of the capital but I have a good deal of sympathy with the points made by the noble Lord, Lord True. He argues powerfully for greater involvement by the London boroughs and for procedure that would facilitate that and indeed put the onus on the Government to prove their case in terms of delegation.
However, another aspect should be taken into account. The amendment speaks of a requirement to consult,
“each London borough council … the Common Council, and … the Assembly”.
There is, of course, a cross-London body of councils, London Councils. In addition to the individual approaches, which obviously make sense, I would have thought it would be useful for London Councils to express a view as an organisation. The noble Lord is nodding his assent to that. Obviously it would be possible to garner the views of the 30-odd London boroughs, but seeking the view of London Councils itself might facilitate a better dialogue across the capital and, I hope, influence the outcome in directions that might not otherwise arise through separate consultations and responses. I wonder whether, if nothing else is done, London Councils could be added to the list of three given in Amendment 105.
Lord Jenkin of Roding
My Lords, I would like to respond to that briefly. London Councils has made it very clear from the beginning of this Bill that it has been unhappy with the extent to which the regional authority in London—namely, the mayor and the London Assembly—seems to have been more successful in securing powers and opportunities than have London boroughs. Maybe that is their fault, but the fact of the matter is that the point made by my noble friend Lord True is shared by London boroughs as a whole. There needs to be a better balance between the mayor and the boroughs on these sorts of matters. As I have said before, the boroughs are responsible elected authorities and deserve to have a proper consideration on these matters. I hope that the Minister will feel able to give further consideration to this point. Here is another case where the mayor’s lobbying seems to have been more effective than that of the London boroughs. I am not sure whether that is right or justified, but that seems to be what has happened.
Lord McKenzie of Luton
My Lords, as we have heard, the government amendment requires consultation before there is any delegation or variation of a delegation of ministerial powers to the Mayor of London. This consultation must take place with each London borough, the Common Council of the City of London, and the Assembly. The noble Lord, Lord True, requires consultation on whether the function could be more appropriately conducted at borough level and, if a majority thinks so, an explanation has to be given to Parliament. We obviously support the consultation and the government amendment, but there is no specific guidance in the amendment as to what might result from such consultation. There is no specific requirement to publish the results, produce a response or indeed report to Parliament. Could the Minister give us some more details about these matters? If, for example, the consultation were to be overwhelmingly hostile to the concept, would it still proceed? Can he give us an idea of the type of eligible functions likely to be involved in the sort of delegation contemplated?
The amendment tabled by the noble Lord, Lord True, with which, like my noble friend Lord Beecham, I have some sympathy, raises an interesting point about the role of London boroughs and their equivalents under the so-called Core Cities amendments, which we will shortly come to. Should it be accepted at any stage that the boroughs—one or all of them—would be a better destination for such delegation, and what powers in the Bill would allow that to happen?
Lord Taylor of Holbeach
My Lords, I am grateful to the noble Lord for bringing all these points to bear on what is actually quite a difficult balancing act, and I think noble Lords will agree. I am not a London person, but I come from a two-tier authority. I live in a county council area and in a district council area, and the responsibilities between those two councils are usually clearly defined by statute. I think the governance of London is more involved. The Government’s policy intention is to try to keep an even balance between the democratic mandate which is vested in the mayor and the London Assembly and the democratic mandate which is vested in the London boroughs. I am sure all noble Lords will agree that keeping that balance right is not easy.
Much of the talk has been about how the consultation might go and the consequences of a consultation where perhaps the proposals do not meet with consensus. These are reasonable challenges. The noble Lord, Lord Beecham, asked whether the joint council body for London would be consulted. It is a matter of fact that it would be consulted; I do not know it is a statutory body as such, but it is clearly a body that would be validly consulted. This would not, however, avoid proper consultation with the individual boroughs. It is very important to place on record that these government amendments seek to enshrine the role of the boroughs themselves. Indeed, they are coloured by the amendment of my noble friend Lord True, which seeks to go further in protecting the interests of the boroughs. I understand that.
I was asked how Parliament would be able to challenge any decisions that might be made in this area. In reality, Ministers are accountable to Parliament and I cannot imagine a decision considered by any noble Lord to be totally unfair or irrational to go unchallenged, either by question or even debate in this House, let alone down the other end where quite a large number of Members represent London constituencies.
Lord Beecham
Does the process envisage delegation being made by order or is it outside that process? If it is by order, would it be by affirmative resolution or by a negative procedure?
Lord Taylor of Holbeach
While I await the answer to that part of the process, perhaps I may continue with the process of consultation. It is important to get this on the record too. The consultation exercise will have to be appropriate to the matter in question. The problem with being too prescriptive about the nature of the consultation is that it does not have room for more flexible responses. Consultation should not be a tick-box exercise. It is a proper dialogue. It should not really be about whether it has majority support or not but about what is right, and consensus should be sought across the boroughs and London in the interests of the people of London. In the end, the governance of London is not for the benefit of the mayor, the Assembly or the London boroughs; it is for the people who live there.
In response to my noble friend’s challenging question, the process is outside the statutory instrument process. It is purely an administrative function. However, the decision is still capable of being challenged in Parliament, as I have said, if it is seen to be perverse. There are no immediate plans to use this power, but it is envisaged that it could be used to delegate the administration of some of the national programmes that may be produced on the horizon. That is why it is important to have this capacity and a process whereby there can be discussions across London as to where a national programme might be best delivered.
My noble friend Lord True castigated us, in the nicest possible way, as he would, for not recognising that the Localism Bill is the place where, by empowering local boroughs, we would enhance localism within London. The role of the boroughs is clearly laid down by statute, and they are a very important part of London’s governance. However, London is an exceptional place—it is the capital city of the country—and a number of services are effectively organised across London. The power to delegate arises only when the Secretary of State considers that the functions can be exercised appropriately by the mayor. We say that this provides the sort of comfort which my noble friend seeks. In effect, only a Minister exercising his powers under this clause can do this.
I hope that my noble friend will feel free to withdraw his amendment. I believe that the Government have got the balance on this issue just about right.
Lord McKenzie of Luton
Should it be decided at some stage that a delegation of ministerial functions to a borough or a group of boroughs is a preferred route, does the structure of the Bill permit that?
Lord Taylor of Holbeach
Yes, indeed it does. Functions may well be legislated for in the future that are borough-based and not a matter for the GLA or the mayor.
Lord Jenkin of Roding
Can my noble friend point—I am sorry; this may be an unfair question—to a provision under which the mayor can delegate functions to the boroughs? I am not sure that that provision is in the Bill. I am sorry; I perhaps should have given notice of this.
Lord Taylor of Holbeach
I thought the noble Lord, Lord McKenzie, was asking me whether, in future legislation, responsibilities could be delegated to boroughs.
Lord McKenzie of Luton
I have obviously not been clear enough. I was asking whether, if at some point in the future it were decided to delegate responsibilities to a London borough, the Bill, or any other piece of existing legislation, provides authority for that. I think my question is the same as that of the noble Lord, Lord Jenkin: does the Bill permit that delegation now or at some stage in the future?
Lord Taylor of Holbeach
Is the noble Lord asking whether this can work the other way around and that powers that are currently vested in the mayor should be delegated to the boroughs?
Lord McKenzie of Luton
I am sorry; we are getting into a Committee-type exchange. No, it was just that, as I understand it, the Bill permits ministerial functions to be delegated to the mayor, subject now to the consultation that the amendment is focused on. The noble Lord, Lord True, was asking about delegation not to the mayor but to London boroughs. I think the Minister responded that that was not being contemplated. My question is: if the decision were taken tomorrow that it would be more appropriate to delegate some functions from Ministers to London boroughs, does the Bill permit that? Is that in accordance with the Bill?
Lord Taylor of Holbeach
“Sharing of administrative etc services by London Authorities
(1) Section 401A of the Greater London Authority Act 1999 (sharing of administrative etc services by the Greater London Authority and functional bodies) is amended as follows.
(2) In subsection (1) (definition of “constituent body”)—
(a) for “constituent body” substitute “relevant London authority”, and(b) at the end of paragraph (b) insert “,(c) the London Pensions Fund Authority,(d) the London Transport Users’ Committee,(e) the Commissioner of Police of the Metropolis, and(f) such person or body falling within subsection (1A) as the Secretary of State may specify by order.”(3) After that subsection insert—
“(1A) A person or body falls within this subsection if the person or body exercises functions of a public nature in relation only to—(a) Greater London,(b) a part of Greater London, or(c) a part of England including Greater London or a part of Greater London.”(4) In subsection (2) (power of constituent bodies to enter into arrangements for provision of administrative etc services), for “constituent bodies” substitute “relevant London authorities”.
(5) In subsection (3) (arrangements may include discharge of functions by one constituent body on behalf of another)—
(a) for “constituent bodies” substitute “relevant London authorities”, and(b) for “constituent body” substitute “relevant London authority”.(6) In subsection (4) (power of constituent bodies to form joint committees) for “constituent bodies” substitute “relevant London authorities”.
(7) In subsection (5) (joint committee to be treated as separate from constituent bodies for purposes of section)—
(a) for “constituent body” substitute “relevant London authority”, and(b) for “constituent bodies” substitute “relevant London authorities”.(8) After subsection (6) insert—
“(6A) The Secretary of State must consult a person or body before making an order under subsection (1)(f) specifying that person or body.”(9) In section 420(8) of that Act (orders subject to annulment) after the entry for section 395 insert “401A(1)(f);”.”
“London Transport Users’ Committee
(1) On the day appointed for the commencement of this subsection, the body corporate known as the London Transport Users’ Committee that was established under section 247 of the Greater London Authority Act 1999 (as amended) shall cease to exist.
(2) All statutory powers, duties and responsibilities of the London Transport Users’ Committee shall on the day appointed for the commencement of this subsection vest and devolve in the Greater London Authority and are to be exercised by the London Assembly.
(3) Any appointment to the London Transport Users’ Committee in pursuance of section 247 of the Greater London Authority Act 1999 (as amended) shall cease to have effect and section 247 of that Act (as amended) shall cease to have effect from the commencement of this subsection.
(4) References in enactments, instruments and other documents to London Transport Users’ Committee shall have effect from the commencement of this subsection as references to the London Assembly.
(5) Section 251 of and Schedule 18 to the Greater London Authority Act 1999 (as amended) shall cease to have effect from the commencement of this subsection.
(6) Section 248 of the Greater London Authority Act 1999 (as amended) shall be amended by omitting the words “Authority or” in subsection (1)(a) and by omitting the words “or the Authority” in subsection (3)(b).
(7) Section 249 of the Greater London Authority Act 1999 (as amended) shall be amended by omitting subsection (3).
(8) Section 250 of the Greater London Authority Act 1999 (as amended) shall be amended by omitting subsection (1)(a), the words “the Assembly and” in subsection (2) and the words “the Assembly” in subsection (3).
(9) Section 252A of the Greater London Authority Act 1999 (as amended) shall be amended by substituting the words “the Committee” for the words “the London Transport Users’ Committee” in subsection (2)(a).
(10) Section 252B of the Greater London Authority Act 1999 (as amended) shall be amended by omitting the words “the London Assembly” in subsection (1)(b).”
Lord Tope
Amendment 108 would transfer the purpose and functions of the London Transport Users’ Committee, which operates under the name London TravelWatch and is the body responsible for passenger representation within London, to the London Assembly. The amendment originates from a review conducted last year by the London Assembly, which showed that such a transfer of functions would save up to £1 million per annum of taxpayers’ money. The findings of that review were accepted by all four political parties on the London Assembly. The amendment is therefore supported by all the parties in the London Assembly, the Mayor of London and London Councils, which represents not only the political parties but all 32 London boroughs and the City of London. London TravelWatch was established under the original GLA Act, the purpose of which was to devolve powers and responsibilities to London. That all those elements in London are wholly behind this measure, which saves a significant amount of public money, ought in itself to be enough to persuade the Government to comply with the wishes of London’s elected representatives.
However, I understand that the Government have some concerns. Indeed, during the Recess I had a letter in the name of the noble Baroness the Minister. Let me try to address some of the concerns set out there. Quite rightly, there is a concern to ensure that passenger interests in London are effectively and properly represented by a genuinely independent body. As many of us know, whatever else it is, the structure of London government is unique. The London Assembly is solely a scrutiny body. It has no executive or regulatory powers at all; its function is to scrutinise and hold to account not only the mayor but also the functional bodies. I speak as a member of the London Assembly’s transport committee for some years and I do not think it will surprise anyone to learn that a substantial part of that committee’s work is holding Transport for London and, to a lesser extent, other transport operators in London, to account. It does so very independently because it has no responsibility for TfL—indeed, exactly the opposite. Its members are directly elected by Londoners, as distinct from the members of London TravelWatch, who do an extremely good job but are appointed by the London Assembly. The budget for London Transport—I am sorry, London TravelWatch—is provided by the London Assembly, so again it cannot be argued that the assembly is in some way less independent than the body it appoints and whose budget it provides.
I am sure that again it will come as no surprise to noble Lords to learn that a substantial part of the casework of most London Assembly members, particularly those representing constituencies, is on transport-related issues since they relate to anyone who has to live, work or travel in London. Of course a lot of work for members arises from that, and they are in touch with their constituents on transport issues. Making them officially the passenger representative body can only enhance that and join up the two sides.
The argument was also put that nothing had been said about the workload of the casework. That was because the purpose of this amendment is simply to transfer the function. However, I am sure that if the function were transferred, the wherewithal to carry out that function would follow it. It is not for me to say, but I would assume and expect that the current staff in London Transport—I mean London TravelWatch; I keep making the same mistake—would very likely transfer across under TUPE regulations. That would be a matter for discussion, should this happen. However, without doubt the London Assembly will need to have the capacity to carry out the necessary casework.
Finally, I make a point for serious consideration by the Government. If changes are to be made to London TravelWatch, we need to remember that it was set up under the Greater London Authority Act 1999 and that primary legislation will be needed to change that. I suspect that we will not see this or any other Government introducing a London TravelWatch Bill in the near future so some other vehicle will need to be found in order to make whatever the changes may be. I think, and dare I say I hope, that that may be some way off. Therefore the opportunity arises in this Bill to carry out the wishes of all of London’s elected representatives, to save a substantial amount of public money—more necessary than ever at the present time—and, I would venture to suggest, to provide a strong, independent, directly elected and directly accountable passenger representative body. I beg to move.
Lord Faulkner of Worcester
My Lords, I am sure the House is grateful to the noble Lord, Lord Tope, for moving this amendment and giving us an opportunity to discuss the case of passenger representation in London. However, it may not surprise him to know that I take considerable exception to the case that he, the mayor and the Greater London Assembly are putting forward because I think it is fundamentally flawed. I am aware that it has come about as a result of the review of London TravelWatch carried out last year by the GLA, which did indeed recommend that it be wound up and its functions folded into the assembly. However, that process was seriously flawed. The assembly consulted a number of stakeholders, but then completely ignored what they said. For example, the Association of Train Operating Companies, ATOC, has written to me and said:
“We firmly believe that the functions of a consumer watchdog, in providing impartial casework and research support, and facilitating the resolution of individual complaints with train companies should be demonstrably independent, not under direct political control.
Assembly Members are keen to point out that taking on London TravelWatch's activities will help them to provide greater scrutiny of the mayor's and GLA's activities. However, we believe the priority for London TravelWatch should be handling disputes from individual passengers as a consumer champion and undertaking independent research, not being sidetracked on to issues of political or electoral interest to Assembly Members. Passengers will not benefit if London TravelWatch becomes merely a means for point-scoring”.
The assembly's review claims—and the noble Lord, Lord Tope, has referred to this—that there is scope for substantial savings. The review is vague about where those savings will come from. There does not appear to be any reference to transitional costs or to the cost of the GLA accommodating the staff, although the noble Lord, Lord Tope, did say that a TUPE arrangement may apply, which would undoubtedly have an impact on whatever savings may be possible.
London TravelWatch itself has demonstrated that it can cut its budget by 25 per cent over the next two years, while staying completely independent from politicians and concentrating on its core functions of appeals casework, and policy and investigation. There is a huge danger that the present multimodal work on behalf of the travelling public who use buses, the underground, the Docklands Light Railway, Tramlink, taxis, Dial-a-Ride, and National Rail in and around London would be fragmented if this amendment were adopted. It makes no sense to separate London TravelWatch's rail-related work from its work covering other modes. An example is its excellent, recent report on incomplete Oyster pay, which affects everyone who uses public transport in and around London.
I conclude with one further point: the GLA does not speak for those who are not resident in London. Seventy per cent of all rail journeys begin, end, or pass through London and London TravelWatch's remit extends far beyond the boundaries of Greater London, and includes large chunks of Essex, Hertfordshire, Bedfordshire, Buckinghamshire, Surrey and Kent, and it is from there that passengers travel into London for work or leisure purposes.
This is a really bad idea, which would lead Londoners to be disadvantaged compared with those outside London, who have independent representation on Passenger Focus, looking after their needs, whether they are rail or bus passengers. It is that independence that is important, and that is why I hope the Government will resist this amendment.
Lord Jenkin of Roding
My Lords, my noble friend Lord Tope moved the amendment comprehensively and I only want to make two points. The first point, which has been referred to by those who have already spoken in the debate, is that the September 2010 report by the London Assembly was a very substantial document indeed. It was not entered upon lightly and inadvisably. Despite what we have just heard, it was conducted with great thoroughness and we then came to the conclusion that there was no point, if you have an elected assembly already, in having a second, different body dealing with transport. It was a serious piece of work and the degree of support which my noble friend Lord Tope has indicated is sufficient evidence of that.
My second point is that all local authorities are under stringent spending pressures. Here is a proposal which could save up to £1 million a year for London. In the present circumstances, it is rather unwise not to accept that that is something which should be considered very seriously indeed. I understand the points made by the noble Lord, Lord Faulkner, and the case that has been made by London TravelWatch. At the same time, there is here a formidable piece of work. It will save £1 million and the proposals in the report should be accepted. I therefore put my name to this amendment in order to give the House a chance to make that change.
Baroness Kramer
My Lords, I had not intended to speak on this amendment, but I feel that I must reply to the noble Lord, Lord Faulkner of Worcester. Like many here, I have great regard for the individuals at London TravelWatch and the work that they do. However, the very citation from ATOC carries its own message that, of all the groups in London, the train operating companies would prefer the body which they find they can more easily ignore to the one that they must take seriously. That is entirely in character with the functioning of the TOCs and ATOC. It is precisely to have a much bigger impact on behalf of passengers that it makes sense to make this move from TravelWatch, integrating it into the GLA.
I may have misheard the noble Lord, Lord Faulkner, but he seemed to suggest that, if there was that integration into the GLA, there would be a fracturing of the transport voice. Yet the GLA is already holding TfL rigorously to account. I was on the board of Transport for London and I can tell your Lordships which body it was afraid of—it was very much the GLA. It is the ability of that body to pound away on behalf of the passenger that would be gained by this shift, so I support this amendment.
Lord Whitty
My Lords, I hope that the Government’s reservations, to which the noble Lord, Lord Tope, referred, are indeed strong. This needs to be rejected. I do not want to repeat everything that my noble friend Lord Faulkner said but I would go for the fundamental point. The noble Lord, Lord Taylor, since he is a battle-scarred veteran of the Public Bodies Bill, will probably recall my advocacy of separate representation for the consumer interest in publicly provided bodies and in those which are regulated publicly. The Government wisely backed off from including in lists various bodies, including Passenger Focus, which could have been abolished, while for those that they are going to change they have provided an alternative but still independent body, either in another quango or in the third sector. It is a central provision of public services or those that are regarded as public utilities in this country that we have a separate consumer organisation. That applied when we set up the nationalised industries, when we privatised and liberalised those industries and when we passed the Greater London Authority Act to set up that body. It should continue to apply.
I suppose that I should apply two past interests here, both as a consumer champion as chair of Consumer Focus and as the Minister who, as the noble Lord, Lord Tope, will recall, brought the Greater London Authority Bill through this House. He will also recall that it was the second longest non-financial Bill ever—the absolutely longest, the Government of India Bill in 1935, was never implemented. The implementation of the Greater London Authority Act has left some problems but I do not believe that this is one of them.
It is important that we retain the distinction between the provider, and those who oversee the provider, and the consumer interest. The mayor is responsible for the provision and the London authority for overseeing that provision. In that sense, they are not much different from a private sector board as regards their consumers, so I am afraid that it does not impress me that all parties on the Greater London Assembly welcome and support this move. It is no more impressive to me than if there was a unanimous vote on the board of Thames Water to say that it wished to abolish the Consumer Council for Water, or that Michael O’Leary and the board of Ryanair said that they wished to abolish the Air Transport Users Council or—to go back to my past interests—that the boards of British Gas or npower should say that they wished to abolish Consumer Focus and any successor powers.
We must distinguish between the role of a consumer interest representative and those who are providing, or are part of the governance structure of those who provide, a service. Indeed, in London, predecessor bodies to this go back to the private company of London Transport, through the nationalisation process, through the GLC, through the abolition of the GLC, into the establishment of TfL and through to the London authority and the 1999 Bill. That was sensible. London Assembly members may well have reservations about aspects of this and may well feel that some changes need to be made—that might be right—but this clause does not say that, nor does it say that there should be some rationalisation between the London authority and Passenger Focus.
It might be conceivable that the transfer of this body into Passenger Focus was a rational move; I do not personally think so, but it would still provide an independent consumer voice focus. Actually, however, for the reasons that my noble friend points out, London is unique in this response. London is the only city in this country where the vast majority of people go to work by public transport. TfL has responsibilities way beyond the bus and train area—for roads, taxis and so on. As has also been pointed out, people outside London, and therefore with no voice in the election of GLA members, have an interest in this. So there is no principled argument that would call for the abolition of this body. I would be prepared to consider, and I suspect that the Government would be prepared to consider, something less than that, which allowed for easier changes, but the straight abolition of an independent consumer voice in the most complex, most difficult and in many respects most integrated transport system in the whole country would be a seriously retrograde move and I hope that the Minister will soundly reject it.
Lord Kennedy of Southwark
My Lords, Amendment 108, moved by the noble Lord, Lord Tope, is an interesting amendment, on which I look forward to the response of the noble Earl. As a Londoner, I always thought that the London Transport Users’ Committee did quite a good job standing up for Londoners and, as my noble friend Lord Whitty said, for people travelling through London who have no vote in the GLA or any other elections in London. Having proper GLA input into what goes on in London transport is obviously very important. It has not happened in the past and that is very regrettable. What worries me, though, is where people will go to have their voice heard if this body is abolished. I know that the body is appointed by the London authority. I have some concerns, as a south Londoner, that there is very little experience of south London on the board. That needs to be addressed in the next round of appointments. One member may have been to Putney once or twice, but there is very little involvement in south London.
Another thing that worries me is the performance of London Underground. Noble Lords may not be aware that since April this year performance statistics have ceased to be published, so we have no idea what is going on in London Underground. I think we all know that it is getting worse, for sure, and this is something that needs to be addressed by both the users committee and the London authority pressing the mayor to release those figures again and to say why they have been stopped.
In conclusion, I am not against reform at all, but we need to hear more about how this will improve the situation. We in London all find that things are getting much worse, so we need to hear more about improvements. This may be something for the future, but not now.
Lord McKenzie of Luton
My Lords, I should explain that our official Front Bench position is that we support the amendment, which means that, should it be put to a vote, I, at least, will be obliged to vote in favour. I am not sure how many of my colleagues behind me would follow me into the same Lobby. Our position was formulated because of strong support from the GLA, but I take it as implicit in my mandate that supporting the amendment would be conditional on the Government being able to answer a lot of the very robust challenges that have come, particularly, from this side of the House during this debate.
My noble friend Lord Whitty spoke about the importance of preserving a strong consumer interest. Points were also made by my noble friend Lord Faulkner about whether this will benefit passengers, some of whom do not live in London and are not London voters. Indeed, it covers rail travel from such places as Luton. If we were to separate rail from other modes of travel, how would that work? I understand the thrust of the movers of the amendment, but these are questions that need to be satisfied before it could proceed. Perhaps in responding the Government can confirm that there was overwhelming support for the proposition among transport operators and rail user groups. Will the Government let us know, for the record, whether any alternatives to transfer to the GLA have been considered and on what basis they were rejected?
The Government have acknowledged the considerable amount of casework undertaken by London TravelWatch and are presumably satisfied that this could be handled under the proposed new arrangements. The London Assembly review of TravelWatch, to which the noble Lord, Lord Jenkin, spoke, recommended that the reorganisation be folded into the assembly but with rail functions distributed between the assembly and the national independent passenger watchdog Passenger Focus. Have the Government undertaken an analysis and will they support that as an appropriate way forward?
I look forward to the Minister's reply and hope that he can dig me out of my dilemma on this issue. Powerful issues have been raised that need to be answered before the proposition can and should proceed, much as we love the thrust of it. In particular, there is a mood that the status quo should not necessarily be accepted. There may be ways in which it can be improved and cost savings may be generated. I would be interested in the Minister's views on that as well.
Earl Attlee
My Lords, Amendment 108 would abolish the London Transport Users’ Committee and transfer its functions to the London Assembly. My officials assured me that this would be an easy amendment to deal with—even I would be able to deal with it. The reality is that I find myself in the middle of a pretty vigorous debate. On the other hand, the noble Lord, Lord McKenzie of Luton, also finds himself in an interesting position.
I regret we did not have time to discuss this amendment in Committee when it was tabled by the noble Lords. As my noble friend Lady Hanham indicated in her subsequent letter, the Government believe that it is inappropriate—at this stage through this Bill—for the London Transport Users’ Committee, which is the independent transport users watchdog for London, to be transferred to the London Assembly.
Among other things, the committee undertakes an important and impartial complaints ombudsman role on behalf of London transport users in and around London, and it is vital that any change to the current arrangements ensures that complaints continue to be dealt with in a genuinely independent manner. In particular, there is an EU requirement which mandates the designation of an independent body for complaints for rail transport users. So there is an important question that needs to be resolved about how far the assembly can be sufficiently independent for the purposes of this EU legislation, given its party-political membership, its role in scrutinising the work of the mayor and TfL and its influence over the strategic direction of transport policy in London—especially when this Bill will allow it to reject the mayor’s transport strategy.
Indeed, if the Government had proposed such an amendment, there would have been concerns from many noble Lords about the lack of independent safeguards in the legislation. Therefore, as we have heard from our debate this evening, there are still some important questions that need to be resolved before we can consider legislating for any new arrangements. The noble Lord, Lord McKenzie of Luton, asked me a few more and I do not know the answers, which is why we cannot support the amendments.
However, as I am sure that noble Lords will agree, it is entirely right during a time of fiscal constraint for the London Assembly to consider ways to achieve best value for taxpayers’ money from the London Travel Users’ Committee that it oversees. The Department for Transport has already undertaken a review of Passenger Focus, the national rail passenger watchdog, which will deliver significant savings, and DfT will work with the committee, the assembly and other partners to explore ways to deliver an efficient and effective ombudsman function for London transport users.
On this basis, I hope that the noble Lord will withdraw his amendment.
Lord Tope
I think that I am grateful to the noble Lord, Lord McKenzie, for his more measured support for the amendment. I am less grateful to him for tempting me to call a vote just to see what happens. We will have to see about that. I am grateful to the noble Lord, Lord Faulkner, for putting the case from London TravelWatch. I have seen its briefing. It is not surprising that the body which is proposed for abolition is less keen on its own abolition. That is entirely understandable. I hope that I did not say or imply that there is something wrong with the way in which it does its job. Indeed, the noble Lord, Lord Whitty, gave us a brief history of it all. Back in the 1970s, I was a member of its predecessor body. I am grateful to the noble Lord for reminding us of the many happy hours that we spent discussing the GLA Act, as it became.
A number of points have been made, and I am not going to spend a long time answering them all. We are referring to the abolition of London TravelWatch. Let us be clear: the body that we are talking about may be subsumed in the London Assembly but we are certainly not talking about abolishing the function and representative role of the passenger interest. It is very important that we understand there is no suggestion of that. On the contrary, there is a belief, perhaps not shared by all, that that passenger interest would be enhanced by being represented by people who have been elected. I accept that they are not elected by everybody who ever travels on transport within London; I do not think that will ever be the case. However, I am a little puzzled that members of the Labour Party should say that, because a body is popularly elected, it is therefore not independent. I find that a rather strange argument and one that is difficult to follow. I made very clear—I know this from my eight years’ experience of serving on the London Assembly—that this is an independent body. It has no executive functions and does not always love the mayor. None of the members always loves the mayor, whoever the mayor may be. It has no executive responsibility at all for TfL. Indeed, an enormous amount of its time is taken up questioning—sometimes vigorously, as my noble friend Lady Kramer said—and calling to account the principal transport provider within London and, indeed, the train operating companies that appear for questioning. Therefore, there is a vigorous representation of passenger interest on the part of those people whom most of the passengers—but not all—will have elected as their representatives.
The noble Lord, Lord Kennedy, referred to himself as a south Londoner. I am more south London than him, certainly in geographical terms, but I share his interest in that regard. That situation would be corrected if it were the London Assembly because, whatever I personally may think of the inadequate electoral system by which that body is elected, it represents the whole of London.
Tempting though the suggestion of the noble Lord, Lord McKenzie, is, I will not press the amendment to a Division. The Minister need not comment on this point now but I believe that discussions are going on about introducing changes regarding greater involvement with Passenger Focus. I hope the Government will ensure to the best of their ability that the London Assembly—I mean the London Assembly, not the GLA, which might well mean the mayor instead—is directly involved in all those discussions. I beg leave to withdraw the amendment.
Baroness Kramer
“Transport for London: Rail Authority for London
(1) Section 196 of the Greater London Authority Act 1999 (power of Greater London Authority to give instructions or guidance to Franchising Director) is amended as follows.
(2) In subsection (1), for “The Authority may give instructions or guidance to” substitute “Transport for London shall be”.
(3) Omit subsections (2) to (4).
(4) In subsection (5)—
(a) in the opening words, omit from “give” to the end;(b) in paragraph (a), for “prevent or seriously hinder him from complying” substitute “fail to comply”;(c) omit paragraph (b) (but not the “or” following it).(5) In subsection (6), for “the Authority” (in both places) substitute “Transport for London”.
(6) In subsection (7), for “instructions or guidance may be given” substitute “the Franchising Director shall act”.
(7) In subsection (8), for “the Authority” (in both places) substitute “Transport for London”.
(8) Omit subsection (9).
(9) For the title substitute “Transport for London to be the Franchising Director”.”
Baroness Kramer
My Lords, this amendment follows on nicely from the previous amendment. It also illustrates the general confusion over the structure of transport in the London area. The purpose of the amendment is to remove from the Department for Transport the responsibility for rail franchising within the inner suburban area of London and transfer it to Transport for London. It is wholly within the spirit of the Bill to take from the centre and give to a regional or more local body powers that it can exercise more effectively and more efficiently for the benefit, in this case, of passengers.
Noble Lords will know that at present Transport for London effectively either manages or in some way regulates the Tube, the Docklands Light Railway, bus services, river transport services and taxi services, but when it comes to rail, it has only a very limited purview. It directly manages London Overground, which is one very minor line, and it will have oversight of Crossrail once it is completed. However, when it comes to the inner suburban rail services that criss-cross much of the London area, Transport for London’s role is extremely limited. The Department for Transport lets and manages the franchises and Transport for London can simply specify and pay for either an increment to that service or—terrible bureaucratic word—a decrement to that service. Essentially, the consequence of that has not been very beneficial to passengers.
I would argue that London is different from much of the rest of the country when it comes to rail. Fourteen per cent of Londoners use the National Rail network to commute daily to work. Indeed, outside of London proper, in the south-east and east of London there are many more who use that rail network to commute to work within the London area. That makes it distinctly different from any other part of the country. There are 10 train operating companies, so it is a highly fragmented service. Demand in the area is so inelastic that the kind of competitive pressures that have effect in the rest of the country are virtually irrelevant when it comes to London, where demand is so high, capacity is constantly at breaking point and there is always a need for additional capacity. So the competitive issue that exists elsewhere is not relevant within London itself.
I said that there were 10 different train operating companies. That means 10 different brandings, 10 different fare structures, 10 different forms of marketing, 10 different commercial strategies and 10 different operating time horizons. As noble Lords will know, the McNulty review recommends that more power should go to the train operating companies and franchises should be longer. So trying to create an integrated London Transport service within this environment, where rail is so fragmented and Transport for London has so little direct power, is very significantly undermined. If your Lordships would like an example of what this does to, as it were, disadvantage passengers, I draw your attention to the Oyster card. I should declare that I am a former member of the board of Transport for London and was very involved with the rail side. Rows went on year after year to try to get any form of Oyster card available on National Rail. Then we got “pay as you go”, which most people have now enjoyed only for the past couple of years. Technically it could have been done very easily, but the issue was never high on the priority list for the Department for Transport, which had to be involved because of the franchising structure. The TOCs saw it as a way to leverage money out of London Transport. The whole process was very much to the disadvantage of passengers. If your Lordships want another quick example, just go down to Waterloo. The next time you are stuck on a train that is slow because there is no space to get into Waterloo station, you will see that there is an empty platform. When Eurostar moved to St Pancras, one of the international platforms was, at great expense to the Government, converted to domestic use. The department has never managed to get its act together to put that into play for passengers. That is another huge, wasted asset. Frankly, this is repeated all over London.
Sometimes I seethe with envy when I talk to transport friends in Berlin as they are able to work with the bus and taxi services so that late-night trains are met by a co-ordinated timetable of buses and taxis, ensuring that train passengers have a seamless journey. The battle in London has been to look at travel as a single journey, whether you use one mode or multiple modes to get to your destination, and to create that kind of integration. It has been phenomenally successful, but leaving out rail makes no sense.
Sometimes people say that people from outside London use the services so they must not be too London biased. We can give them a voice by putting some directors from outside London onto the relevant board within Transport for London. It is also true that the department will continue to have a voice, but the balance needs to be shifted towards an entity which has a genuine interest, in a detailed way, in the quality of service, as Transport for London does.
Lord Spicer
Is the empty platform at Waterloo, which the noble Baroness has been describing, the reason why plays are being put on there now?
Baroness Kramer
Plays are not taking place on the adapted platform but it would be better to use it for a play than nothing at all. It is absolutely ridiculous.
I have two more points to make. Some people say that there must have been a lot of thought about how the franchises should be divided up and a reason for not giving far more influence over the rail franchising process to Transport for London. The rationale was, “We don’t like Ken Livingstone”. When the GLA Bill went through this House, particularly when TfL was under review, there was an attempt to minimise the London influence. We had the disastrous Tube public/private partnership, which was a key part of the structure and which ensured that Transport for London really could not manage the system as a whole.
There was very little appreciation of the benefits of integration. That is one of the other pieces, if you like, which came out of much of that kind of thinking. We have all moved beyond that and recognise the benefits of integration and the benefits of regional management. I argue that at this time, when the transport infrastructure in this area is desperately overstretched, when we really are in a situation of economic recovery in some areas of London and you practically have to strap people to the roofs of transport carriages, we need to maximise the use of that infrastructure. Therefore, the logic is to change the franchising responsibility, which is what this amendment attempts to do.
Lord Berkeley
This is an interesting amendment. I was particularly seized of the way in which the noble Baroness, Lady Kramer, proposed it because, following the previous amendment and the discussion about London Travel Watch—I am sorry that I was not in the Chamber at that time—I was sent a map of the extent of London Travel Watch, which goes well beyond the GLA boundary in many areas. I do not think it goes all the way out to Banbury but it goes quite a long way in that direction; it also goes a long way west and a long way south. It made me think that if this amendment were accepted, one would end up with the same kind of problem. On the main network, not many trains terminate within the GLA boundary. I believe Croydon must be near the edge—I am no expert on Croydon but perhaps some of my noble friends could confirm that—but I do not think that any services that go through East Croydon terminate there. So there will be a debate between those who want long-distance services as frequently as possible, stopping as infrequently as possible, between Croydon and the centre of London, for example, and those who live within the GLA boundary who want a regular stopping service.
The other problem, which is particularly evident on the lines south of London, is that in many places you can get to two or three different London termini by train. It is a lovely service if it works—it usually does—but it is a very complex network. It compares strongly with the Underground lines which, on the whole—apart from the Northern line—may serve two destinations at each end, but not three or four. I can see a time when Transport for London might say that it would like to rationalise the services south of London, for example, by making them more frequent, but going to fewer destinations, and having cross-platform interchange in some places, because it thought that would be better for its electorate.
I mentioned the question of through-services and the debate regarding them and the shorter-term. There is also the question of access for freight—I declare an interest as chairman of the Rail Freight Group—although there is not much freight south of the Thames, so we can probably forget about that. However, I also recall a big debate during the many Crossrail debates, because when TfL thought it was in charge of Crossrail and the Great Western, it started off on the basis that it would have the sole use of the slow lines, to Maidenhead or Reading, and all the other trains could have the fast lines. TfL thought that was a brilliant idea, because it would run a very frequent service—there would probably be those lines of heavy cables that you see between London Underground lines—but it completely forgot that those lines are run as a network of four tracks. If anything goes wrong on one track, the trains are immediately switched to the other ones to keep the service going. I did a calculation at the time, which indicated that if Crossrail had got its way the passenger operators would have had to cut their service frequency to places such as Cardiff, Oxford and Bristol by at least 50 per cent, if not more. Only half the freight trains would have gone up that line, and when one of the lines was dug up, they would just have to stop.
That is the logical consequence of splitting responsibilities. There is work to be done with TfL and the Department for Transport to take into account the needs of people who live within the GLA area and then we can have a big debate on how the available capacity is shared out between the department’s view, which is, one hopes, long-distance, and TfL’s, which has a local view. As for giving the train operators—all 10 of them, as the noble Baroness said—more responsibility, I think that is a bit dangerous when so much co-ordination is needed. It is a debate that we need to have. I am not sure whether this is the right amendment, but I think it is very useful to be having this discussion.
Lord Faulkner of Worcester
My Lords, I was tempted to speak by the noble Baroness, Lady Kramer, as she was tempted to speak by me on the previous amendment. I have a great deal of sympathy with the points she is making. I will start with a correction—also for the noble Lord, Lord Spicer—that it is not only one platform at Waterloo that is out of use; it is platforms 21, 22, 23 and 24. I think I am right in saying that it is 21 and 22 which are being used by the production of “The Railway Children”, which I can recommend unreservedly. I speak as a trustee of the National Rail Museum, as it is very much our play.
Baroness Kramer
Without being a train wonk on this, there is only one platform that has been converted for domestic use. The other platforms could be, but that work has not been done.
Lord Faulkner of Worcester
The noble Baroness, Lady Kramer, is quite correct. As I said, I have a great deal of sympathy with the point she makes but my concern is that the introduction of a new franchising authority, which the amendment proposes, would be in danger of creating greater fragmentation of the railway than we have at present. I agree with her that there are probably too many train operating companies. It is the Government’s intention that franchises should be longer than they have been in the past, and I strongly support that. However, to introduce a new franchising operator could lead to confusion and fragmentation. My noble friend Lord Berkeley refers to services that serve London but go well beyond. The classic example of that is the Thameslink line, which starts in Bedford, goes through Luton and St Albans—none of which is covered by Transport for London or the GLA—and then goes south from Croydon to Brighton.
Services like that need to be looked at in a regional context, and I am not certain that looking at them in a London context would make a great deal of sense. However, I pay tribute to what Transport for London has done in the development of its Overground service. The opening up of the East London line is an extraordinarily successful venture. The trains are very popular and they provide new journey opportunities for people who probably did not make those journeys, or tried to do it by car, or struggled on buses. It deserves to be commended for that.
I agree with my noble friend that it is helpful to have this debate, but this amendment is not quite the way that we should go.
Earl Attlee
My Lords, I understand the intention behind my noble friend’s amendment; namely, that the mayor and TfL should have greater control over London’s commuter rail franchises, given their wider transport responsibilities. As my noble friend Lady Hanham said in her letter following the Committee stage, TfL already plays an important role in relation to London’s commuter rail services. It already has, as pointed out by my noble friend, effectively full franchising powers over the London Underground concession, covering a number of key routes across London. It works closely with the Department for Transport in the development of other rail franchises affecting London, with the mayor having the ability to pay for outputs over and above those that the DfT specifies. By the way, I undertake to look up in the dictionary the definition of “decrement”.
The devolution of other London commuter rail franchises to the mayor and TfL is not a straightforward matter. The geography of London’s commuter rail network does not sit well with London’s administrative boundaries, with many lines extending well into neighbouring counties, as pointed out by many noble Lords. Furthermore, capacity on much of the London commuter network is limited, and there are inherent conflicts between London-area and non-London services that need to be balanced in the best interests of all users, and to keep overall costs down.
I am afraid my noble friend did not satisfy me in how the balance would be struck between the needs of commuters who live in London, and who elect the mayor and the Assembly, and those living in Luton, Brighton and Woking, who do not. There is a real question of a democratic accountability deficit if other London commuter rail services are devolved to the mayor, as many commuters do not live in London so do not have the opportunity to participate in the elections.
Nevertheless, the Department for Transport is happy to engage TfL further about the devolution of local rail services, in the context of Sir Roy McNulty’s independent study on rail value for money earlier this year. This study suggested that more local control of rail services could contribute to the development of lower-cost regional railways and, in line with the Government’s localism agenda, we are considering options for more local control of some rail services in other parts of England. We will also continue to encourage operators to work more closely with TfL. The new working arrangements, put in place for the South Central franchise which was let in 2009, appear to be working well.
On this basis, I urge my noble friend to withdraw her amendment.
Baroness Kramer
My Lords, I am delighted that I have been able to stir up some debate on this issue and see it get some attention—rather than slip to its usual place at the bottom of everybody’s priority list—because there are some genuine issues here.
I say to those who are concerned about passengers outside the London area that most people have London as their destination and are therefore intensely important to TfL; they are not marginal. Also, most people who come in contribute in some way to London’s economic viability, either through business or entertainment, and so are very much a concern to Transport for London even though they do not actually live within the area. Again, we can also bring in other board members.
I am delighted to have sparked off some of this debate. Given that, I beg leave to withdraw the amendment.
Lord Beecham
“(2A) An order under subsection (1) or (2) may not be made in respect of—
(a) this Act; or(b) any of the provisions listed in Schedule (Statutory exemptions from section 5: supplemental provision).(2B) The Secretary of State may by order amend Schedule (Statutory exemptions from section 5: supplemental provision) to include additional statutes or Regulations.
(2C) An order made under subsection (2B) is to be made by statutory instrument.
(2D) Before an order may be made under subsection (2B), a draft order must be approved by an affirmative resolution in both Houses of Parliament.
(2E) Schedule (Statutory exemptions from section 5: supplemental provision) has effect.”
Lord Beecham
My Lords, when we discussed the provision about general competence in Committee, the noble Lord, Lord Newton, who is not in his place, chided me for my apparent diffidence in respect of the way in which I moved amendments at the time. I did and do welcome the conferring of the power of general competence that the Bill provides, especially in the light of the general perception in the media by such august bodies as the TaxPayers’ Alliance and even occasional Ministers that “general incompetence” is the term that should be applied to much of local government—something that I certainly refute. However, there are flaws in the Government's proposals and the amendment addresses at least some of them.
The two amendments in this group relate to what can only be described as a dispensing power which the Secretary of State will take to disapply, repeal or amend legislation that he conceives somehow inhibits the exercise of the general power of competence. It is fair to say that in Committee the noble Baroness addressed concerns that had been raised about, for example, the application of human rights legislation on matters of that kind, and indicated that these were not envisaged as being embraced by the Bill. Certainly I accept that point. However, a great many pieces of legislation, on the face of it, appear to fall within the provisions of Clause 5(1) and therefore are subject to amendment, repeal or revocation, in the words of the clause. They extend over a wide area of public policy. A number of them are listed in the proposed new schedule that is the subject of the second amendment in this group. They cover such areas of law as part of the Childcare Act, the Child Poverty Act, the Care Standards Act, disabled persons regulations, carers legislation, parts of the Mental Health Act, the Community Care Act and the Environment Act. The list includes an Act in relation to which I will not declare an interest: the Prevention of Damages by Pests Act.
It is a formidable list of legislative requirements that can, simply by order, be revoked. That raises a significant question about the role of the Executive. It is not clear whether Clause 5(1) requires any such changes to be made by affirmative resolution. Certainly that was the view of the Delegated Powers Committee. Other provisions in the clause are subject to affirmative resolution, or would be subject to it. The noble Baroness indicated in Committee that that was probably the case, and it would appear so. However, it does not necessarily seem to be the case in relation to Clause 5(1). Perhaps the noble Baroness will comment on that.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I am glad that the noble Lord, Lord Beecham, is not seeking to get me out of my job just yet. I thank him for that. There is a little overexcitement about Clause 5(1)—not that the noble Lord ever raises his voice excitedly. However, there are concerns that are not necessary. Amendment 109A would prevent the Secretary of State making any orders under Clause 5(1) and (2). That would mean that he could not even amend the long list of legislation set out in Amendment 119E. However, it would give him order-making powers to add to the legislative list; he would be able to add but not to take away.
The power in Clause 5(1) is a power to remove restrictions and limitations to the legal capacity of local authorities that prevent them exercising the general power of competence. I think that we all want to see them have this general power. The clause must be read in the context of that power, which is a power to do things that an ordinary individual can do. It is not a power to remove any duty or obligation placed on local authorities, such as many of those listed in Amendment 119E, where such duties or obligations do not restrict or limit the capacity of the local authority to do things that the individual can do.
Noble Lords must hang on to the word “individual”; that is the important aspect. We do not consider that Clause 5(1) could be interpreted—the noble Lord addressed this and understands it—as allowing the Secretary of State to amend the requirements of, for example, the Equality Act or the Human Rights Act as they apply to local authorities. These Acts place broad duties on public authorities, including individuals, so they cannot be part and parcel of this power of competence. These Acts are not a restriction or limitation on the legal capacity of the local authority, so the power could not be used in the way suggested for these or any other similar legislation, just as it could not be used to exempt local authorities from prohibitions contained in criminal law.
We have listened to concerns, and amendments were brought forward in the other place, which are now in Clause 6, to place restrictions and limitations on the power in Clause 5(1). We believe these provide additional safeguards so that there can now be no doubt about the scope of the power. It does not permit the removal of essential duties, protections or rights from the Secretary of State. I also confirm that, as part of the consultation required by Clause 5(7), it will be appropriate to consult every person or group of persons, or their representatives, who will be substantially affected by the proposal. The results of any such consultation would have to be presented to Parliament, and then Parliament could veto the order.
The noble Lord asked me whether Parliament would be involved in this. As I said, Clause 5(7) is also modelled on what is in the Legislative and Regulatory Reform Act. The procedure to be followed would be negative, affirmative or superaffirmative, and that would be ultimately determined by Parliament. This matter has been put to the Delegated Powers Committee, which has no difficulty with that and has expressed itself on side with the procedure.
We believe that these amendments are unnecessary. We are trying to give local authorities as much power as we can, but we realise that some of that is going to come eventually from Parliament. There are restrictions on the powers of the Secretary of State in these procedures. Local authorities are not going to have completely unfettered power with the general power of competence, but it will be much wider than it is at the moment.
I hope that I have answered the noble Lord satisfactorily about the involvement of Parliament if the Secretary of State were to use these powers, so I hope that he will feel able to withdraw his amendment.
Lord Beecham
I am grateful to the Minister for her reply. I accept that there now appears to be at least a parliamentary procedure here. I still think it is difficult to accept the notion that primary legislation imposing duties that were imposed for a purpose on local authorities and others should be varied or revoked in the way set out in the Bill. Having noted the point about the affirmative procedure, however, I accept her assurances and beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
Amendments 109B and 109C relate to the same provision under the Secretary of State’s powers, but in this case they seek the deletion of the power of the Secretary of State in effect to nullify the power of competence which the Bill purports to represent. This is really quite an exceptional provision and is not at all acceptable. The Secretary of State takes upon himself, having conferred or purported to confer this very broad power, the right to,
“by order make provision preventing local authorities from doing, in exercise of the general power, anything which is specified, or is of a description specified, in the order”,
or, under Clause 5(4), to make that subject to conditions. That is a very far-reaching incursion on the principle that the Bill seeks to advance, and it is simply not acceptable.
Amendment 109C in this group deals with the rather strange phrase, “any necessary protection”, which is contained in the clause and is in no sense defined. It is presumably left to the Secretary of State to determine what a necessary protection is. These are the limits under the power contained in Clause 6. In the absence of any sensible definition, I do not think this is an acceptable power to confer on the Secretary of State. I invite your Lordships to agree that these provisions should be left out of the Bill, and I move Amendment 109B accordingly.
Baroness Hanham
Amendment 109B, as the noble Lord said, would remove subsections (3) and (4) of Clause 5. These subsections provide reserve powers to allow the Secretary of State to prevent authorities from exercising the general power or to set conditions around the use of this power. We believe that these powers provide a necessary and proper safeguard, given the breadth of the new power—to ensure, for example, that risks to both local government finances and the Exchequer are properly managed. The Government have no plans—I think I said this earlier on—to use the powers in subsections (3) and (4). At present, there is nothing in mind; the Secretary of State is not sitting there with great excitement, his pen poised, waiting to take away what he has already given. The Government actually expect them to be used very rarely, if at all. They are, however, an insurance policy. They might, for instance, have to be used to deal with any risks that might arise from authorities’ use of the new general power—I think I said this in Committee—to engage in novel financial transactions using public money. That might require the Secretary of State to step in. The use of the power is subject to consultation and to the affirmative procedure, which would ensure suitable parliamentary scrutiny. I just want to stress that, occasionally in legislation, we need to provide for the very end of the road when something might go wrong, and that is all the clause is for.
Amendment 109C would remove one of the conditions that place restrictions and limitations on the use of Clause 5(1). The provision in question must not remove, as the noble Lord said very clearly in his opening remarks, “any necessary protection”. This condition ensures that protections—which might relate, for example, to the economy, health and safety, civil liberties, the environment or national heritage—are not removed. A similar condition is used in the Legislative and Regulatory Reform Act 2006, so this is not new to legislation. It is quite deliberately wide. Any Secretary of State seeking to make an order under Clause 5(1) must be satisfied that the condition is met and must explain why to Parliament. We believe, therefore, that this and the other conditions in Clause 6 are a useful additional safeguard and should be retained.
Before the noble Lord or others intervene, I will speak to government Amendments 234, 235 and 236, because it might help the debate coming afterwards. Amendment 234 gives effect to the recommendations of the Delegated Powers and Regulatory Reform Committee in relation to Clause 5(2). Clause 5(2) is entirely benign; it can be used only to remove wholly overlapped, and therefore unnecessary, powers. It cannot be used to remove duties. The amendment ensures that orders made under Clause 5(2), if not made in conjunction with orders under Clause 5(1) and subject to special procedures set out in Clause 7, will have to be subject to an affirmative procedure. We believe that those safeguards, coupled with the intense level of parliamentary scrutiny provided, give sufficient protection.
Lord Beecham
I am grateful to the Minister for her reply, and I have no difficulty with the government amendments to which she spoke. However, I continue to have difficulty with the response to my amendment. The Secretary of State is clearly not prepared to trust local government with the powers that he is conferring on local government. He retains significant power to override the exercise of the general power which he has purported to confer or to impose conditions, admittedly subject to a parliamentary procedure. The whole case is redolent of the Government simply not being prepared to trust their partner in local government, a point that was made by the noble Lord, Lord Newton, when he was castigating me for being insufficiently robust on the previous occasion. I hope I have not failed his test today.
On this and on the previous occasion the Minister referred only to some novel financial practices, as if these were the most likely candidates for the invocation of the powers conferred by the Act. So far as financial practices are concerned, if there is any suggestion that they are likely to damage the finances of the local authority, there are existing mechanisms to deal with that within and outside the authority in the proper financial officer and audit, albeit perhaps not for much longer under the auspices of the Audit Commission. There are perfectly proper safeguards, and the additional powers that the Secretary of State seeks to reserve for himself under this Bill are not needed. I still do not understand what is meant by the “necessary protection” to which Clause 6 refers. Protection from what, against what and to what extent it is necessary are entirely opaque. In these circumstances, I must test the opinion of the House.
Baroness Hanham
Baroness Hanham
My Lords, government Amendments 110, 111 and 113 accept the recommendations of the DPRRC to change the procedures to be followed when making orders relating to the general powers of fire and rescue authorities. Amendments 110 and 111 make orders to expand the scope of an existing order subject to the affirmative procedure, as recommended by the DPRRC.
In response to the amendment tabled on 20 June by the noble Baroness, Lady Smith of Basildon, I said that it was never the Government’s intention to enable charging for all community fire safety or prevention activities and that I would reflect on the best way of achieving that aim. Amendment 113, tabled in respect of England and Wales, retains the existing position that fire and rescue authorities cannot charge for the giving of advice, on request, about preventing fires and means of escape in any premises. The amendment retains the existing ability of fire and rescue authorities to charge for the giving of advice in relation to non-domestic premises unless that advice is requested under Section 6(2)(b) of the Fire and Rescue Services Act 2004 which sets out the criteria for fire safety; the noble Baroness will know more about this than I do. Fire and rescue authorities will not be able to charge for the giving of advice in relation to domestic premises in any circumstances. Charging is optional and up to full cost recovery, not for profit. This amendment will replicate existing arrangements on charging for giving advice as set out in the 2004 Act. I await the amendment tabled by the noble Baroness.
Baroness Smith of Basildon
My Lords, I rise to speak to our Amendment 112 and comment on the government amendments in this group.
I welcome the Government’s amendments and I am grateful to the noble Baroness for her comments. I appreciate that it caused some confusion when I first raised this. As the noble Baroness generously said, when she first wrote to me, her officials and government Ministers had understood that the legislation as drafted would not allow for charging. It was completely inadvertent, as she said, and they had not appreciated that a consequence of the Government’s proposals to expand and increase charges would lead to community fire safety being charged for. Indeed, she wrote to me to that effect. I thank her because, when it was recognised that our concerns on this were justified, she raised the matter in the House and immediately wrote to me as well to clarify the position and agreed to bring forward government amendments to correct the error. I am grateful to her for doing that.
I have to say to her that this is a fairly large Bill, about 500 pages long. It is very detailed and quite technical in parts, and some of the discussions we have had have sometimes seemed quite complex. We have concerns that some parts of this Bill may have been rushed through to the House before they were fully and properly drafted. It is to the great credit of the noble Baroness that she has been ready to engage and debate on these issues, and at times has been prepared to concede and bring forward amendments to try to improve this legislation. So I am grateful to her for the amendments she has brought forward today, in so far as they go.
I am sorry to raise the matter in this way, but I am looking at the difference between the amendment in my name and the amendment from the Government, which refers to Section 6(2)(b) of the 2004 Act. Our Amendment 112 would not allow charging for community safety or fire prevention work, whereas the government amendment refers to Section 6(2)(b) of the 2004 Act, which is purely about the fire safety work that a fire authority must undertake as part of its core functions. I entirely agree that that is right and proper in so far as it goes. The last Government recognised that fire safety should be a core function, and therefore placed a duty on fire authorities to undertake fire safety. No fire authority should be allowed to charge for that core function, as the noble Baroness rightly agrees. Where I think there is a grey area—and some clarification on this would be helpful, as this is another unintended consequence—is that many fire authorities have extended this work to the related, but slightly wider, community safety remit.
I have some particular examples of this work, which I am sure the noble Baroness would never want to see lost to the community. For example, my authority in Essex runs a number of courses for young people, such as one called “Firebreak” and another called “Young Firefighters”, and there are similar schemes in other authorities. They do promote fire safety—there are clearly benefits for fire safety—but there are much wider benefits to the individuals taking part and to the community. In Basildon, Essex fire service uses these projects, working with local authorities, councils and other bodies, as part of a team tackling crime and disorder. The fire service is part of the crime and disorder reduction partnerships, and it is very proud of this work. I looked at its website earlier today for examples. It seems to me—the noble Baroness can assure me on this—that from the wording that is taken from the 2006 Act this does not exactly fall under fire safety.
For example, there is a page on the Essex County Fire and Rescue Service website about Darren, 18, of Ashingdon Road in Hawkwell. He has just joined the crew of his local fire station as the newest recruit, and he said:
“It was Firebreak which really showed me what I wanted to do with life and how I could do it. I had got into the wrong crowd and was getting in trouble with the police and then bringing that trouble with me into school and getting into worse trouble”.
His head teacher referred Darren to the “Firebreak” course—it is a long quote but I will read it—and, as Darren says,
“When I got back to school I ditched my mates and really buckled down. Almost straight away I saw my grades improving and my predicted exam results shot up. Firebreak made me realise that there is more to life than getting in trouble and mucking about and gave me something to work towards”.
That is not technically fire safety, but the benefits to the community are enormous. Another person mentioned is Craig, who is 20 and attended this course in 2005. He says:
“I was taking drugs, drinking and stealing cars. Basically I was completely off the rails. Firebreak has changed my life, I no longer drink or take drugs and am now working to become a firefighter myself”.
The Cheshire fire service signs up to missdorothy.com. I do not know whether the noble Baroness is aware of missdorothy.com. When I was Fire Minister I went to see some of the work that it is doing, which is about community safety for younger children. Given the trust placed in firefighters, and their very respected position in the community, they were engaging very young children in community safety. Part of that was about fire safety and being safe, but also about being safe in their broader lives. The Cheshire fire service is also one of the employers involved with the Prince’s Trust programme. I certainly think that nobody in your Lordships’ House would want to lose the fire service’s involvement with the Prince’s Trust. There is a 12-week personal development course, and the fire service is one of the employers doing that.
Devon and Somerset is another authority that has a personal development scheme, also called “Firebreak”, for key stage 4 pupils from 14 to 16. Its website says that it provides a
“themed educational diet designed to complement and enhance the school curriculum. It aims to raise achievement, improve self motivation, increase educational engagement”,
and aims to develop,
“practical skills, life skills, communication skills, team work”.
Looking around the country, I see that Suffolk authority is another one to engage actively with children and young people. One of its objectives is to prevent and reduce fire crime and fire, but it also wants to engage young people, and has professional staff working with the authority, to identify good practice in working with children and young people. East Sussex has a “LIFE” project and Chester has a “Respect” project.
All of those have proven successes in deterring young people not only from a life of crime but from social disorder as well. My fear is, if it was the Government’s intention, which I suggest it probably was not, that these should be charged for—and I think that, under the Government’s amendments, they would be able to be charged for—then those very young people who can benefit most from these courses would not be able to do so.
Another issue is that, if these courses were chargeable, who would pay? In many cases it would be another public authority. What we would be doing is introducing a bureaucracy to move money around the system. So it would be helpful if the Minister, perhaps not today, could reflect on the advice she was initially given that this would not be covered by fire safety. Perhaps there may be some kind of guidance that could be issued. I think that this is the kind of work that so many people in the community benefit from.
In my own authority, at Basildon fire station, Martin Trevillion leads the community safety programme, and it is an exceptional programme. Having spoken to so many young people that have benefitted from it, I would be reluctant for us to lose that programme simply through inadvertent drafting of legislation.
Finally, I want to raise one other issue, which is that of carbon monoxide safety and awareness. I am also not clear that Section 6(2)(b) of the 2004 Act, which talks about advice on how to prevent fires and on means of escape from buildings, would cover carbon monoxide safety. This is a particular issue: there have been a number of deaths and serious injuries due to carbon monoxide, and it is something that fire authorities are able to take on and work with, and I know that some of them already do so. I would not think that the noble Baroness intended that that should be charged for as well.
When at Second Reading I first raised the issue of charging for community safety, it was clear that the Government had not thought about the implications, quite inadvertently, and this had slipped through. The Minister was able to respond to those concerns very positively. I hope she understands that my raising these tonight is in exactly the same tone, as this is a service provided by the fire authorities, working with their community, which we really would be very loath to lose, if they had to charge for it. I ask the Minister—I think she has had time to reflect, or to receive enlightenment on this issue quite soon—even if she cannot give me a full answer today, to reflect on that so some guidance can be issued, because this resource that is provided by our fire and rescue services is very valuable for the community.
Lord Berkeley
My Lords, I would like to support what my noble friend has said about the problem of charging for fire advice. When I read the second part of Amendment 113—proposed new subsection (5B)—I thought, “Well, any fire authority that is able to charge will probably do so”. Is it really the Government’s intention that small businesses, and particularly charities like the Scouts and others that are not for profit, should have to pay for such advice? My experience with such businesses is that it is very hard to start up anyway. I believe that you have to get fire advice in many cases. Having to pay will make life even more difficult. I can understand why the Government want to allow fire authorities to make such charges but to do that for non-profit organisations seems to be a little hard. Perhaps the Minister could reflect on that and consider whether it could be omitted for charities and non-profit organisations.
Baroness Hanham
My Lords, I am struggling to get a response on both matters. I understand that we are working within the framework of the fire and safety Act, so whatever that includes will be included. I am very reluctant to answer the noble Baroness today. I do not have the answer. It is quite wide in terms of what we are seeking to do. The same applies to the noble Lord, Lord Berkeley. I always hate having to say that I do not know the response to something, but I will have to do so today. If the noble Baroness and the noble Lord will forgive me, I will write to them before Third Reading to make sure that there is a clear understanding of the answer to both questions. My gut feeling is that probably there is wriggle room here for the fire authorities to decide whether or not to charge, but we should be clear about that. I will write and will make sure that that response is in the Library so that we can come back to it before Third Reading, if necessary.
Baroness Hanham
Baroness Hanham
“(5A) Subject to subsection (5B), section 18A(1) does not authorise charging for action taken under section 6.
(5B) Subsection (5A) does not prevent charging for the giving of advice, other than advice of the kind mentioned in section 6(2)(b), in relation to premises where a trade, business or other undertaking is carried on (whether for profit or not).”
Lord McKenzie of Luton
“CHAPTER 2ATransfer and delegation of functions to certain authoritiesPower to transfer local public functions to permitted authorities
(1) The Secretary of State may by order make provision—
(a) transferring a local public function from the public authority whose function it is to a permitted authority;(b) about the discharge of local public functions that are transferred to permitted authorities under this section (including provision enabling the discharge of those functions to be delegated).(2) An order under this section may modify any enactment (whenever passed or made) for the purpose of making the provision mentioned in subsection (1).
(3) The power to modify an enactment in subsection (2) is a power—
(a) to apply that enactment with or without modifications,(b) to extend, disapply or amend that enactment, or(c) to repeal or revoke that enactment with or without savings.(4) An order under this section may disapply, or modify the application of, Chapter 4 of Part 1A of the Local Government Act 2000 (changing local authority governance arrangements) in relation to a county council or district council to which the order transfers a local public function.
(5) The Secretary of State may not make an order under this section unless the Secretary of State considers that it is likely that making the order would—
(a) promote economic development or wealth creation, or(b) increase local accountability in relation to each local public function transferred by the order.(6) For the purposes of subsection (5)(b), in relation to a local public function, local accountability is increased if the exercise of the function becomes more accountable to persons living or working in the area of the permitted authority to which it is transferred.
(7) The Secretary of State may not make an order under this section unless the Secretary of State considers that the local public function transferred by the order can appropriately be exercised by the permitted authority to which it is transferred.
(8) The Secretary of State may not make an order under this section transferring a local public function to a permitted authority unless the authority has consented to the transfer.
(9) Before making an order under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
Lord McKenzie of Luton
My Lords, in speaking to Amendment 114, I shall speak to the other amendments in this group. Given that they each also bear the names of the Minister and the noble Lord, Lord Shipley, I have some expectation that they may be acceptable to your Lordships. The Bill currently includes provisions which enable the Secretary of State by order to transfer a local public service function from any person to its elected mayor. In Committee, we sought to amend that by widening its application to local authorities that operated a leader and cabinet executive model of governance. That amendment was eventually withdrawn.
Additionally, in Committee, we tabled amendments which were prompted by the Core Cities group. These amendments sought equivalent opportunities for the transfer and delegation of functions as were provided to the Mayor of London under the Bill. It was suggested that this approach had cross-party support among the Core Cities group, growing support from the Members of Parliament of the core cities and support from Ministers. In the event, these amendments were not moved on the final day in Committee. Over the Recess, the Government have taken the issue forward with the Core Cities group, hence the amendments today. They also cover the original proposals for transfers to mayors which are replaced.
Amendment 114 provides for the transfer of local public functions from a public authority to a permitted authority. A public function is a function of a public authority. A permitted authority includes a county council in England, a district council and an economic prosperity board. The transfer is achieved by an order of the Secretary of State and may not be made unless it considered that the order would promote economic development or wealth creation, or increase local accountability in relation to each local public function. The Secretary of State must be satisfied that the permitted authority can exercise the function appropriately and has consented to the transfer.
Amendment 115 permits the delegation to a permitted authority of a Minister’s eligible functions, mirroring the provisions of Clause 210, which cover such delegation to the Mayor of London, and on which we touched on earlier amendments. Amendment 116 allows the Secretary of State to make a scheme for the transfer of property rights or liabilities to give effect to a transfer of functions and a delegation of a Minister’s eligible functions or their revocation.
Amendment 117 imposes a duty on the Secretary of State to consider any proposals for the exercise of these powers which come from a permitted authority and to establish criteria by which they must be considered. Amendment 118 crucially sets out a robust super-affirmative procedure for any order which seeks to transfer functions to a permitted authority. Amendment 119 covers definitions. Amendments 151, 161, 163 and 241 are consequential.
Core Cities is a network of the local authorities of England’s eight largest city economies outside London. It includes Birmingham, Bristol, Leeds, Liverpool, Manchester, Newcastle, Nottingham and Sheffield. The cities drive their local economic areas and make a significant contribution to the national economy. They work in partnership with government to influence policy and to develop new ideas based on knowledge of what works on the ground to improve economic performance and reduce dependency. The Core Cities group has a track record of more than 15 years led by city leaders across all parties.
The powers in this amendment could be available to anywhere that meets the criteria. However, England’s core cities are the main drivers of the country’s economy outside London and the south-east. Together, their primary urban areas deliver 27 per cent of the national economy, more than London, and contain 16 million residents. The role of cities is central to delivering national economic outcomes, reducing dependency on public spending, and in driving growth, productivity and tax revenues. Supporting growth in the core cities is vital to rebalance the UK economy.
With more decentralised arrangements for governance and public finance, these cities would be able to deliver greater economic outcomes for the UK. Recent independent economic forecasts commissioned by Core Cities have demonstrated that the local enterprise partnership areas, given greater control over the drives of growth, are capable of delivering an additional 1 million jobs and £44 billion economic output over the next decade.
The Bill offers an opportunity through these amendments to create a binding narrative around other localist and decentralising policy, enabling this Government to deliver a distinctive set of urban policies and a legacy of empowered cities driving private sector growth and jobs. The Bill proposes to transfer powers from the London Development Agency and the Homes and Communities Agency to the Mayor of London, and makes provision for further ministerial delegation. Other major economic areas need the same opportunity to be able to drive growth and prosperity for their business and residents, and for the wider economy. The country needs London to do well but, to create an equitable and multicentred national economic strategy, the same chance needs to be given to other areas that are capable of growing employment. England needs a London-plus national economic policy.
It is the intention of the Core Cities group to seek these powers for its members but it will not be restricted to the core cities and their urban areas. Any economic area that fulfils the eligibility criteria could be able to request these delegations. The overarching aim of the amendment is to drive economic growth and productivity, and reduce dependency. Now is a critical moment for economic recovery and we need to boost local investment and investor confidence. This amendment would support private sector growth and jobs; create new opportunities for efficiency, innovative finance and investment; enable distinctive urban policy and a legacy of empowered cities; ensure continued buying from private sector partners on LEPs; support the implementation of a local government resource review and further incentivise local authorities and their partners; support the implementation of enterprise zones; clarify existing routes of delegation; support double devolution to local communities; support the wider restructuring of subnational economic development architecture; create a route to delegate to further emerging governance structures; and be a significant—I suggest popular—and symbolic step towards decentralisation and localism. I beg to move.
Lord Tope
I am grateful to the noble Lord, Lord McKenzie, for moving the amendment. As he rightly said, my noble friend Lord Shipley has added his name to it and was hoping and expecting to be here to speak in support of it. He has been in Manchester all day on government business. I have just heard that he has only just got on a train in Manchester, so I suspect that he will not be here in time to contribute to this debate. However, I have a fairly good idea of what he would have said had he been here, and I speak on his behalf. As someone who has been a London councillor all his adult life, I must say that I had not expected to be speaking on behalf of Core Cities. It is a rare privilege and something I do enthusiastically because I very much support these amendments.
Both this Government and the previous Administration have made firm commitments to devolution and decentralisation. The Bill now offers an opportunity to hand decision-making powers from central to local government, working in partnership with the private sector. The Government’s stated aim is to rebalance the economy, focusing on the whole of our national economic system as well as London and the south-east, enabling other places to develop their economies to boost national growth and productivity.
Devolution has happened at different speeds in different geographies. London will receive further powers through the Bill, and the devolved Assemblies already have powers that are not available directly to cities in England. Without further decentralisation there is a risk that England’s core cities, which generate 27 per cent of England’s GVA—my noble friend Lord Shipley points out that that is more than London—and other towns and cities will be unable to perform to their full potential and support nationwide growth and enterprise. Recent independent forecasts by Oxford Economics demonstrate that the core cities’ eight local enterprise partnership areas are capable of delivering an additional 1 million jobs and £44 billion GVA over the next decade, given the tools to do so.
This enabling amendment creates a route to these tools to ministerial delegation and the transfer of public service functions for economic development and wealth creation to single and combined authorities in England. Any such actions would be subject to competency tests, including strong local governance and private sector buy-in, evidence that growth can be delivered and sound arrangements to work across administrative boundaries.
The potential of the amendment would be open to any place, as the noble Lord, Lord McKenzie, has said, that can demonstrate that it can pass the competency tests that the Government will set out. It will ensure that local areas have the powers and financial autonomy to deliver local solutions to their challenges, and that further legislation will not be needed to pass these powers to cities’ civic and business leaders. Any major transfers will be subject to parliamentary scrutiny.
The amendment would support private sector growth and new opportunities for investment, ensure continued buy-in from private sector partners on LEPs, support the implementation of policy to incentivise places to deliver growth, support double devolution to local communities, and be a significant step towards decentralisation.
As the noble Lord, Lord McKenzie, has said, these amendments enjoy support from at least three sides of the House and, I hope, passive support from the fourth. Therefore, I am very pleased to be able to support them.
Lord Jenkin of Roding
My Lords, having heard the case in favour of these amendments, I am not in the least surprised that my noble friend on the Front Bench has added her name to them. My only comment is to say how much has changed since I was in charge of local authorities back in the 1980s. It is a change that is entirely welcome. This is a far more positive approach than anything I had to deal with at that time. Perhaps a veil might be drawn over that period; it was a very unhappy period for much of local government. I thoroughly support these clauses and I congratulate the core cities on the work they have done to bring all this forward.
Baroness Gardner of Parkes
My Lords, I am very impressed with the way the amendment was moved and by the universal support that there seems to be in the House on this. I do not want to be a wet blanket but I am slightly concerned about the sweeping powers that will be given to the Minister, and I should like to feel satisfied that the super-affirmative resolution that was referred to will come into force and work. It is very important, particularly as over the years we will get changes of government. The provision is universally approved of, and when I hear my noble friend Lord Jenkin, who has vast experience in this field, favouring it, then I can do nothing but agree.
Lord Beecham
My Lords, I congratulate my noble friend Lord McKenzie on moving the amendment, working very hard to ensure that it is in an acceptable form and persuading the Minister that it represents the right policy. I must congratulate the Minister and the Government on making the most significant concession, if you will, that we have had so far in terms of the Bill. This is the most localist part of the entire Bill, and the Minister and her colleagues deserve to be congratulated on that. Indeed, the noble Lord, Lord Tope, also should be congratulated. We have had an almost biblical experience tonight. The voice was the voice of the noble Lord, Lord Tope, but the words were the words of the noble Lord, Lord Shipley—however, they were none the less persuasive for that.
Incidentally, the noble Lord, Lord Shipley, has done well to be in Manchester today. Were he travelling down by the east coast main line this afternoon he would not get here. I understand that winds have blown down trees on the east coast line and things are massively disrupted. Perhaps one day somebody will do something about the rail network and make sure that these incidents are less apt to cause damage.
However, I must say in reference to the noble Lord, Lord Jenkin, that it was my pleasure to work with him, up to a point, when he chaired the Inner City Partnership committee as Secretary of State in Newcastle and Gateshead in the 1980s. I was then the leader of the council, a position that I relinquished—not before time, many people thought—some 17 years ago. It would have been helpful to have had the kind of powers conferred by this amendment—assuming it is passed, as I take it it will be—on local government.
As some of your Lordships will be aware, I am not an enthusiast for elected mayors by any means. I am therefore glad that the original restriction has been abandoned because it seems to me important that councils with the more conventional model of leader and executive should have this opportunity. Indeed, they have earned this opportunity. I refer particularly to the leader of Manchester City Council and his authority, which has blazed a trail in terms of urban regeneration and activities, not just for its authority but as one of the leading authorities in the Greater Manchester area of the Association of Greater Manchester Authorities, which now has parliamentary authority for a unique structure so far in terms of English local government.
Certainly the conferment of these wider powers is very welcome, particularly as I fear that some of the other changes in government policy will have an adverse effect on what everybody intends to happen, which is that the economic prosperity of these areas should be reinforced and, we hope, expanded.
I think that the Government erred in dismantling the regional structures, acknowledging that much of the work has to be at the sub-regional level, and therefore led by local authorities, in particular by the core cities. The disappearance, certainly in the north-east region of the Regional Development Agency has not been helpful. LEPs may be working in some places, but I do not think that they necessarily fill the gap. While I cannot speak for other parts of the country, certainly in the north-east I am bound to say with regret that an outbreak of parochialism, if not tribalism, is actually diminishing the capacity of what is a fairly compact region to deal with these issues. One hopes that the conferment of powers under this Bill will to a degree remedy that deficiency, but it is not axiomatic that authorities which are not so far being regarded as core cities will either seek these powers or use them in a collaborative way.
Later in the Bill we will talk about the duty to co-operate. It is a political duty rather than a legal one at the moment, so it remains to be seen how, in terms of planning, that duty can be strengthened. If the good intentions of this amendment are to be implemented, that will require a more constructive attitude on the part of some authorities than has been evident in the recent past. However, more than that is needed; it also requires a buy-in from a range of government departments and agencies. The Department for Communities and Local Government has set out its stall, but it remains to be seen whether other departments will, as it were, shop at that stall. There are some reasons to be concerned about that. One stems from the decision of the Government to abolish the regional offices and take back into Whitehall those civil servants up and down the country who became part of the dialogue between local areas and the Government in Whitehall. In my and others’ view, that local intelligence cannot simply be replaced by people sitting, in the case of Newcastle, in an office nearly 300 miles away, although the distances will differ. These people will not have a day-to-day acquaintance with the needs of an area or with local leaders, whether they be political or business leaders. In the north-east and no doubt elsewhere we found over many years that those who served in the Government offices became powerful and useful advocates for the regions and cities with the main departments in Whitehall. That, I think, is currently missing.
Beyond that, there is the question of what is happening to the community budgets. These are the replacement for the Total Place programme initiated at the suggestion of the Local Government Association, but adopted by the previous Government. The intention has been to pool resources across government departments and work to a common agenda which would differ according to each locality. That is the principle which has been piloted with some success. However, I have been making inquiries through Parliamentary Questions about the degree to which there has in fact been any buy-in by government departments to this agenda. It is totally unclear how much of the expenditure being authorised by departments at the local level has been applied to the concept of the community budgets. Apparently no one is even collating this information, let alone trying to ensure that departments are working with each other and their local partners on this programme. If that is the case for the policy that has been deployed until now, one has to wonder whether other departments will, in practice, fulfil the Government’s intentions—I repeat, I applaud them on adopting the policy set out in the amendment—in terms of the actual devolution of functions. If they are not prepared to co-operate and pool budgets in a joint way, will they seek to devolve functions to and through local government?
One can imagine a range of such functions, not least in the area in which my noble friend will have the good fortune to lead for the Opposition tomorrow and for some time hence, that of welfare reform. There are clear possibilities for much of the work being carried out in terms of employment, benefits and getting people from welfare into work to be done through local government and for responsibilities to be devolved in that respect. I hope that the Government will not simply wait for departments to come forward with proposals, but will positively promote the idea of piloting different approaches and services in authorities with a track record and whose capacity will in any event have to be recognised under the terms of the amendment.
It seems that this amendment has great potential for changing the way we respond to local needs and circumstances in a manner that reflects the strengths and opportunities as well as the weaknesses of a local and regional economy, and indeed those who make the decisions within it. But it needs to be driven across Whitehall. I do not know whether that would be a function of the Minister for Cities. Potentially it might be one, and I understand that the noble Lord, Lord Shipley, is an unpaid adviser in that department. After spending many years in opposition and a few years in power in Newcastle, he is well qualified to assist the Minister, if that is the position. But again, this really does need to be driven from the top of Government, let alone by the Department for Communities and Local Government, however worthy it is in this respect. It is early days of course, and I do not know whether the Minister will be able to indicate whether there have been any discussions across the departments about how these matters might be progressed. Of course, we have only just had the amendment put before us so these are early days, but it would be reassuring if the Minister could say whether, at the very least, the Secretary of State would seek to work with Cabinet colleagues, the Local Government Association and perhaps a selection of the local authorities to explore in a coherent way how, while allowing for variation and experimentation, the intentions of this very worthy amendment could be implemented. I look forward to hearing what the Minister has to say.
Baroness Hanham
My Lords, I am delighted to have been able to put my name to these amendments. There is no doubt that the core cities have worked extraordinarily hard to make sure that what they are hoping to achieve is well understood. The amendments were originally moved by the noble Lord, Lord McKenzie, at the previous stage, and we have worked on them ever since. It is very appropriate that something like this is done on a cross-party basis. As the noble Lord, Lord Beecham, said, these are big powers that are very localist in nature and will do precisely what local government has wanted for a long time. It is therefore appropriate that they are now being presented in a way that enables us all to join in.
I am grateful for the support of the noble Lords, Lord Shipley and Lord Tope, and the noble Lord, Lord Beecham, for all the questions he has asked me. I hope that I shall be able to answer some of them. However, we have learnt from him that the railway line to Newcastle is not operating because of fallen trees. That is useful to know at this stage in case we all suddenly want to run off and go there. I am also grateful to my noble friend Lord Jenkin for expressing his support. We recognise that things have moved on a long way from the days when he was a very distinguished Secretary of State who was extremely supportive of local government. But I do not think that even he at that stage could have envisaged that we would have been able to do this.
As has been said, the new clauses proposed in the amendments allow for the transfer of public functions and the delegation of ministerial functions to local authorities and other permitted authorities. They combine the amendments that allowed for the transfer and delegation of functions to local authorities as originally tabled by the opposition Front Bench in Committee with a power a transfer functions to elected mayors as set out in new Section 9HA which, as a consequence, we are now withdrawing.
Lord McKenzie of Luton
My Lords, I thank the noble Baroness, Lady Hanham, for her reply and all the noble Lords who have spoken in support of the amendments. It seems that we have unanimity, I think for the first time during our deliberations. I thank the noble Lord, Lord Jenkin, in particular. As he said, the climate has changed since he was Secretary of State. I remember some of those days with a district authority in Luton. If I except Newcastle, there was the odd Labour-controlled authority in those days to which we, even on these Benches, would not have been overly keen to transfer these sorts of powers.
The noble Baroness, Lady Gardner, asked about the superaffirmative procedure. Amendment 118 very clearly sets out that, as the Minister has described, these orders have to go through the superaffirmative process before they can proceed.
My noble friend Lord Beecham made the valid point that the Government have to play their part in all this, because Amendment 117 requires and places an onus on government to respond or to consider proposals that are made to it by core cities or whoever. I should reiterate that credit for this goes to the Core Cities Group. It originated it and raised it with us. I know that it raised it with the noble Lord, Lord Shipley, and I thank the noble Lord, Lord Tope, for speaking on his behalf today. It is good that the Government took it up over the Recess and knocked it into technical shape so that it works properly. I will not press my luck further. I beg to move.
Amendment 114 agreed.
Amendments 115 to 119 agreed.
Amendment 119A
Earl Attlee
“CHAPTER 2AOther authoritiesIntegrated Transport Authorities
In Part 5 of the Local Transport Act 2008 (integrated transport authorities etc) after section 102A insert—“CHAPTER 4General powers102B Powers of Integrated Transport Authorities
(1) An ITA may do—
(a) anything the ITA considers appropriate for the purposes of the carrying-out of any of the ITA’s functions (the ITA’s “functional purposes”),(b) anything the ITA considers appropriate for purposes incidental to the ITA’s functional purposes,(c) anything the ITA considers appropriate for purposes indirectly incidental to the ITA’s functional purposes through any number of removes,(d) anything the ITA considers to be connected with—(i) any of the ITA’s functions, or(ii) anything the ITA may do under paragraph (a), (b) or (c), and(e) for a commercial purpose anything which the ITA may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose.(2) Where subsection (1) confers power on an ITA to do something, it confers power (subject to section 102C) to do it anywhere in the United Kingdom or elsewhere.
(3) An ITA’s power under subsection (1) is in addition to, and is not limited by, the other powers of the ITA.
(4) Subsection (5) applies if there is, in relation to an ITA—
(a) a Passenger Transport Executive established under section 9 of the TA 1968 for the integrated transport area of the ITA, or(b) an executive body established by virtue of section 79(1)(a) or 84(2)(d).(5) The ITA may delegate to the Executive or body the ITA’s function of taking action under subsection (1) (but not the function of determining what action to take).
102C Boundaries of power under section 102B
(1) Section 102B(1) does not enable an ITA to do—
(a) anything which the ITA is unable to do by virtue of a pre-commencement limitation, or (b) anything which the ITA is unable to do by virtue of a post-commencement limitation which is expressed to apply—(i) to the ITA’s power under section 102B(1),(ii) to all of the ITA’s powers, or(iii) to all of the ITA’s powers but with exceptions that do not include the ITA’s power under section 102B(1).(2) If exercise of a pre-commencement power of an ITA is subject to restrictions, those restrictions apply also to exercise of the power conferred on the ITA by section 102B(1) so far as it is overlapped by the pre-commencement power.
(3) Section 102B(1) does not authorise an ITA to borrow money.
(4) Section 102B(1)(a) to (d) do not authorise an ITA to charge a person for anything done by the ITA otherwise than for a commercial purpose (but see section 93 of the Local Government Act 2003 (power of ITAs and other best value authorities to charge for discretionary services)).
(5) Section 102B(1)(e) does not authorise an ITA to do things for a commercial purpose in relation to a person if a statutory provision requires the ITA to do those things in relation to the person.
(6) Where under section 102B(1)(e) an ITA does things for a commercial purpose, it must do them through—
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.(7) In this section—
“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Integrated Transport Authorities)(1) of that Act;“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Integrated Transport Authorities)(1) of that Act;“pre-commencement power” means power conferred by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Integrated Transport Authorities)(1) of that Act;“statutory provision” means a provision of an Act or of an instrument made under an Act.
102D Power to make provision supplemental to section 102B
(1) The Secretary of State may by order made by statutory instrument make provision preventing ITAs from doing under section 102B(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order made by statutory instrument provide for the exercise by ITAs of power conferred by section 102B(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(3) The power under subsection (1) or (2) may be exercised in relation to—
(a) all ITAs,(b) particular ITAs, or(c) particular descriptions of ITAs.(4) Before making an order under subsection (1) or (2) the Secretary of State must consult—
(a) such representatives of ITAs,(b) such representatives of local government, and(c) such other persons (if any),as the Secretary of State considers appropriate.(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order—
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular ITA or to ITAs of a particular description, or(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular ITA or to ITAs of a particular description.(6) Power to make an order under this section includes—
(a) power to make different provision for different cases, circumstances or areas, and(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings.(7) The Secretary of State may not make an order to which subsection (8) applies unless a draft of the statutory instrument containing the order (whether alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
(8) This subsection applies to—
(a) an order under subsection (1), other than one that is made only for the purpose mentioned in subsection (5)(b);(b) an order under subsection (2), other than one that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose.(9) A statutory instrument that—
(a) contains an order made under this section, and(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,is subject to annulment in pursuance of a resolution of either House of Parliament.””
Earl Attlee
My Lords, in moving Amendment 119A, I shall also speak to Amendments 119B, 119D, 119DA and 119BA, in the name of the noble Lord, Lord McKenzie of Luton. The amendments will allow integrated transport authorities and their executive bodies, passenger transport executives, to properly undertake activities that benefit or contribute to their purposes. The enabling power goes beyond the existing incidental powers and can extend outside their geographical boundaries and immediate hinterland. These bodies are not local authorities and will therefore not have the benefit of the general power of competence that is already contained in the Bill.
The matter was debated in another place and in this House on 20 June. In response to an amendment tabled by the noble Lord, Lord McKenzie, the Secretary of State for Transport sought agreement to include suitable provisions in the Localism Bill, and this was given. The amendment provides an appropriate broader general power for integrated transport authorities and their passenger transport executives. For consistency, the power will also be provided to combined authorities and economic prosperity boards.
The main reason why these bodies need such a power is that local authorities using similar powers to the ITA’s existing incidental and well-being powers have been the subject of successful legal challenge. Integrated transport authorities and their passenger transport executives have therefore been unwilling to undertake activities and enterprises that are not expressly prescribed in law. The view that they could be successfully challenged has been supported by legal opinion obtained by the Passenger Transport Executives Group. An example provided by PTEG of the activities that they are seeking to use the new powers for is the provision of back-office functions for transport smart cards, similar to Oyster cards in London, to local authorities not in an ITA area or in another integrated transport authority area. Because providing and charging for such an activity is not expressly permitted by existing legislation, they fear legal challenge.
The potential benefits of integrated transport authorities being able to let their passenger transport executives undertake such operations for others is that they will be able to realise the economies of scale from providing similar services to a number of bodies. The bodies wishing to use these services will also benefit from obtaining the service more cost-effectively from an organisation that is already doing something very similar. The cost savings realised by both provider and client can be passed on to council tax payers. In the case of the service provider, this will be the metropolitan district councils in the area concerned. In the case of the client organisations, this will be either local authorities outside an ITA area or the metropolitan district councils within another ITA area.
The suggested amendment to government Amendment 119B in the name of the noble Lord, Lord McKenzie of Luton, is unnecessary because we are satisfied that where it serves some purpose in relation to a body’s function, collective action is already covered in the drafting of the new broader general power to be found in proposed new Clause 102B(1). Noble Lords will be aware that the parliamentary draftsmen undertake their work with great care. We are at one with what powers we want to grant and we should trust the parliamentary draftsmen to get it right on our behalf.
On government Amendment 119D, I have just explained to your Lordships our argument for providing integrated transport authorities and PTEs with wider general powers. This amendment seeks to do the same for combined authorities and economic prosperity boards, which are intended to provide stable governance mechanisms for long-term strategic decision-making on economic issues. In bringing groups of relevant authorities together, both are expected to be based upon meaningful economic geography. Where a combined authority is established for an area, it will be responsible for the transport functions in place of an ITA as well as having economic development and regeneration powers. Currently, one combined authority has been established in Greater Manchester. Economic prosperity boards are similar to combined authorities but without the transport functions. There are presently no economic prosperity boards.
Given that broader powers are being given to integrated transport authorities, it is essential that these powers are also made available to combined authorities and economic prosperity boards to ensure that they can effectively discharge their economic objectives. Indeed, given the close interrelationship between economic development and transport, it would be unreasonable not to confer these broader powers upon both bodies and would undermine their ability to deliver sustainable economic growth. I beg to move.
Lord Berkeley
My Lords, this is an interesting group of amendments. The Minister explained their purpose very well, but it seems to me that the pendulum is swinging from local authorities, PTEs and ITAs et cetera getting a bit frightened of what they are allowed to do to something that is beginning to look like a Henry VIII clause in the transport field. That is probably quite a good thing, actually. It seems that they are going to be given powers to do anything. Perhaps the noble Earl could explain whether this could include, in respect of the integrated transport authorities or the passenger transport executives, things such as operating rail franchises if they felt like it. Could they take a bigger role in sponsoring and deciding how the franchises were run, and what would be the extent of their financial commitment to it?
Could those authorities go as far as was recently planned in Merseyside: for Merseytravel to run a vertically integrated railway and take over the infrastructure from Network Rail? It was interesting that that authority had been lobbying to do this for at least five years, if not 10, but then just as the McNulty report, which might have encouraged them to do it, came out it decided that it was not going to do it because it was too risky. However, it is an interesting option that may be open to other authorities. What will they do in running trams and operating buses? The prospect of even better integration between different types of services would be good, if it happened.
Lord Beecham
My Lords, I very much endorse my noble friend’s observations but, like him, I also have one or two questions about how things might work. I come from an area that has been well served by a passenger transport authority and executive for many years. We have a pretty good bus system and a metro system, which was initiated by a Conservative Government in the 1970s—ad idem again across the Floor—and extended more recently. It is very successful but its powers in relation to private bus companies are circumscribed. That is a source of frustration, at least to that passenger transport executive, and I wonder whether the Bill will actually open the possibility of a different relationship between the authority and the bus companies. Incidentally, I suppose I ought to declare an interest as the holder of a bus pass and a concessionary metro pass.
I know from my own experiences as a ward councillor, but also from general issues arising from transport, that the feeling is that there is insufficient leverage in the hands of the executive in relation to private contractors. That is one question, and, again, if it is not possible to give an answer immediately, subsequently will be quite satisfactory.
The other issue relates to the Highways Agency. One can well envisage circumstances in which the role of the Highways Agency may be quite important to the transport plans of an executive, and, indeed, to the delivery of transport services. Again, in my experience, it is not always the most amenable government agency that one has to deal with. I know that the experience of the noble Earl, Lord Attlee, is different—we have had a conversation to that effect—but, certainly, there is at least some potential for a different relationship between an authority with the powers that will conferred on it by this Bill and the Highways Agency.
Going back to where we left the discussion on core cities, the same principle applies. Will there be buy-in not only from the Department for Transport but in particular from that executive agency, which is very influential and needs to co-operate with the body charged with the delivery of local transport? Of course, the Highways Agency does not deal, generally speaking, with the road network in towns and cities. Nevertheless, in a sub-regional area such as Tyne and Wear, Greater Manchester or elsewhere, there is a relationship between their activities and programmes and those of the executive. I wonder whether any enlightenment might be cast upon that issue. Again, I do not necessarily expect a reply off the cuff, and if it is more convenient I would be happy to receive a written communication in due course.
Lord McKenzie of Luton
My Lords, I shall speak briefly in support of these amendments, subject to any issues that come out of the very forensic questioning of my noble friends. Amendment 119BA seeks simply to ensure that the powers conferred can be pursued either alone or collectively with one or more ITA. I accept entirely the Minister’s confirmation that it can and that this amendment is not necessary. I am pleased that that is on the record. As the noble Earl said, we moved amendments in Committee to achieve a general power of competence for ITAs similar to that given to fire and rescue authorities in the Bill. These replicated amendments moved by my honourable friend Barbara Keeley in another place. The Minister there explained that these were matters for the Department for Transport and were under consideration. That, indeed, was the response when we debated the amendments in Committee here, but the Government committed to take matters further, which they have done. They have fulfilled their obligation to the House and we are happy to support these amendments.
Earl Attlee
My Lords, I am grateful for the welcome to these amendments. The noble Lord, Lord Berkeley, asked about extension of powers possibly covering rail franchising and Henry VIII powers in this amendment. Primary legislation would be required to allow the ITAs to be involved in franchising outside their area. If such changes are required, the Government will look for a legislative opportunity.
The noble Lord, Lord Beecham, mentioned the Highways Agency. He will understand that the Highways Agency is concerned with the strategic road network, but I am confident that it will work closely with local authorities. The noble Lord also asked about powers relating to local bus services in ITA areas. ITAs set a broad strategy for public transport, including buses. Most bus services in an ITA area are run on a commercial basis. ITAs are responsible, where they see fit, for topping up—in other words, adding extra services. There are some detailed questions and I will ensure that we get a full answer to all the questions. A copy will of course be placed in the Library. I beg to move.
Baroness Hanham
“Passenger Transport Executives
(1) In Part 2 of the Transport Act 1968 (integrated transport authorities etc) after section 10 insert—
“10A Further powers of Executives
(1) The Executive of an integrated transport area in England may do—
(a) anything the Executive considers appropriate for the purposes of the carrying-out of any of the Executive’s functions (the Executive’s “functional purposes”),(b) anything the Executive considers appropriate for purposes incidental to the Executive’s functional purposes,(c) anything the Executive considers appropriate for purposes indirectly incidental to the Executive’s functional purposes through any number of removes,(d) anything the Executive considers to be connected with—(i) any of the Executive’s functions, or(ii) anything the Executive may do under paragraph (a), (b) or (c), and(e) for a commercial purpose anything which the Executive may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose.(2) Where subsection (1) confers power on the Executive to do something, it confers power (subject to section 10B) to do it anywhere in the United Kingdom or elsewhere.
(3) The Executive’s power under subsection (1) is in addition to, and is not limited by, the other powers of the Executive.
10B Boundaries of power under section 10A
(1) Section 10A(1) does not enable the Executive to do—
(a) anything which the Executive is unable to do by virtue of a pre-commencement limitation, or(b) anything which the Executive is unable to do by virtue of a post-commencement limitation which is expressed to apply—(i) to the Executive’s power under section 10A(1),(ii) to all of the Executive’s powers, or(iii) to all of the Executive’s powers but with exceptions that do not include the Executive’s power under section 10A(1).(2) If exercise of a pre-commencement power of the Executive is subject to restrictions, those restrictions apply also to exercise of the power conferred on the Executive by section 10A(1) so far as it is overlapped by the pre-commencement power.
(3) Section 10A(1) does not authorise the Executive to borrow money.
(4) Section 10A(1)(a) to (d) do not authorise the Executive to charge a person for anything done by the Executive otherwise than for a commercial purpose, but this does not limit any power to charge that the Executive has otherwise than under section 10A(1)(a) to (d).
(5) Section 10A(1)(e) does not authorise the Executive to do things for a commercial purpose in relation to a person if a statutory provision requires the Executive to do those things in relation to the person.
(6) Where under section 10A(1)(e) the Executive does things for a commercial purpose, it must do them through—
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969. (7) In this section—
“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Passenger Transport Executives)(1) of that Act;“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Passenger Transport Executives)(1) of that Act;“pre-commencement power” means power conferred by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Passenger Transport Executives)(1) of that Act;“statutory provision” means a provision of an Act or of an instrument made under an Act.
10C Power to make provision supplemental to section 10A
(1) The Secretary of State may by order make provision preventing the Executive from doing under section 10A(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order provide for the exercise by the Executive of power conferred by section 10A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(3) The power under subsection (1) or (2) may be exercised in relation to—
(a) all Executives,(b) particular Executives, or(c) particular descriptions of Executives.(4) Before making an order under subsection (1) or (2) the Secretary of State must consult—
(a) such representatives of Executives,(b) such representatives of local government, and(c) such other persons (if any),as the Secretary of State considers appropriate.(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order—
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular Executive or to Executives of a particular description, or(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular Executive or to Executives of a particular description.(6) Power to make an order under this section includes—
(a) power to make different provision for different cases, circumstances or areas, and(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings.(7) A statutory instrument containing an order to which subsection (8) applies (whether alone or with other provisions) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) This subsection applies to—
(a) an order under subsection (1), other than one that is made only for the purpose mentioned in subsection (5)(b); (b) an order under subsection (2), other than one that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose.(9) A statutory instrument that—
(a) contains an order made under this section, and(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,is subject to annulment in pursuance of a resolution of either House of Parliament.”(2) In section 10(1) of the Transport Act 1968 (powers of a Passenger Transport Executive)—
(a) in paragraph (xxvii) (power to invest sums not immediately needed) for “any sums which are not immediately required by them for the purposes of their business” substitute “their money”, and(b) in paragraph (xxviii) (power to turn unneeded resources to account) omit “so far as not required for the purposes of their business”.(3) In section 22 of the Transport Act 1968 (orders under Part 2 of that Act to be subject to annulment) after subsection (2) insert—
“(2A) Subsections (1) and (2) of this section do not apply in relation to orders under section 10C of this Act (but see subsections (7) to (9) of that section).”
(4) In section 93(9) of the Local Government Act 2003 (authorities with power under section 93 to charge for discretionary services) before paragraph (b) insert—
“(ab) the Passenger Transport Executive of an integrated transport area in England;”.(5) In section 95(7) of the Local Government Act 2003 (power to authorise certain authorities to do for commercial purposes things that they can do for non-commercial purposes) in the definition of “relevant authority” before paragraph (b) insert—
“(ab) the Passenger Transport Executive of an integrated transport area in England;”.”
Baroness Hanham
“Economic prosperity boards and combined authorities
(1) In Part 6 of the Local Democracy, Economic Development and Construction Act 2009 (economic prosperity boards and combined authorities) after section 113 insert—
“General powers of EPBs and combined authorities113A General power of EPB or combined authority
(1) An EPB or combined authority may do—
(a) anything it considers appropriate for the purposes of the carrying-out of any of its functions (its “functional purposes”),(b) anything it considers appropriate for purposes incidental to its functional purposes,(c) anything it considers appropriate for purposes indirectly incidental to its functional purposes through any number of removes,(d) anything it considers to be connected with—(i) any of its functions, or(ii) anything it may do under paragraph (a), (b) or (c), and(e) for a commercial purpose anything which it may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose. (2) Where subsection (1) confers power on an EPB or combined authority to do something, it confers power (subject to section 113B) to do it anywhere in the United Kingdom or elsewhere.
(3) Power conferred on an EPB or combined authority by subsection (1) is in addition to, and is not limited by, its other powers.
113B Boundaries of power under section 113A
(1) Section 113A(1) does not enable an EPB or combined authority to do—
(a) anything which it is unable to do by virtue of a pre-commencement limitation, or(b) anything which it is unable to do by virtue of a post-commencement limitation which is expressed to apply—(i) to its power under section 113A(1),(ii) to all of its powers, or(iii) to all of its powers but with exceptions that do not include its power under section 113A(1).(2) If exercise of a pre-commencement power of an EPB or combined authority is subject to restrictions, those restrictions apply also to exercise of the power conferred on it by section 113A(1) so far as that power is overlapped by the pre-commencement power.
(3) Section 113A(1) does not authorise an EPB or combined authority to borrow money.
(4) Section 113A(1)(a) to (d) do not authorise an EPB or combined authority to charge a person for anything done by it otherwise than for a commercial purpose (but see section 93 of the Local Government Act 2003 (power of EPBs, combined authorities and other best value authorities to charge for discretionary services)).
(5) Section 113A(1)(e) does not authorise an EPB or combined authority to do things for a commercial purpose in relation to a person if a statutory provision requires it to do those things in relation to the person.
(6) Where under section 113A(1)(e) an EPB or combined authority does things for a commercial purpose, it must do them through—
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.(7) In this section—
“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;“pre-commencement power” means power conferred by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or (b) is contained in an instrument made under an Act and comes into force before the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;“statutory provision” means a provision of an Act or of an instrument made under an Act.
113C Power to make provision supplemental to section 113A
(1) The Secretary of State may by order make provision preventing EPBs or combined authorities from doing under section 113A(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order provide for the exercise by EPBs or combined authorities of power conferred by section 113A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(3) The power under subsection (1) or (2) may be exercised in relation to—
(a) all EPBs,(b) all combined authorities,(c) particular EPBs,(d) particular combined authorities,(e) particular descriptions of EPBs, or(f) particular descriptions of combined authorities.(4) Before making an order under subsection (1) or (2) the Secretary of State must consult—
(a) such representatives of EPBs or combined authorities,(b) such representatives of local government, and(c) such other persons (if any),as the Secretary of State considers appropriate.(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order—
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular EPB or combined authority or to EPBs or combined authorities of a particular description, or(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular EPB or combined authority or to EPBs or combined authorities of a particular description.(6) Power to make an order under this section includes—
(a) power to make different provision for different cases, circumstances or areas, and(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings.”(2) For section 117(2) and (3) of the Local Democracy, Economic Development and Construction Act 2009 (affirmative procedure applies to orders under Part 6 other than certain orders under section 116) substitute—
“(2) An order to which subsection (2A) applies may not be made unless a draft of the statutory instrument containing the order (whether alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
(2A) This subsection applies to an order under this Part other than—
(a) an order under section 113C(1) that is made only for the purpose mentioned in section 113C(5)(b),(b) an order under section 113C(2) that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose, or(c) an order under section 116 that amends or revokes provision contained in an instrument subject to annulment by resolution of either House of Parliament. (3) A statutory instrument that—
(a) contains an order under this Part, and(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,is subject to annulment by resolution of either House of Parliament.””
“Further amendments
(1) In section 146A of the Local Government Act 1972 (application of provisions to certain joint and other authorities)—
(a) in subsection (1) for “or (1A)” substitute “, (1ZD) or (1ZE)”, and(b) after subsection (1ZC) (which is inserted by section 9 of this Act) insert—“(1ZD) An Integrated Transport Authority is not to be treated as a local authority for the purposes of section 111 above (but see section 102B of the Local Transport Act 2008).(1ZE) Neither an economic prosperity board, nor a combined authority, is to be treated as a local authority for the purposes of section 111 above (but see section 113A of the Local Democracy, Economic Development and Construction Act 2009).”(2) In section 93(7) of the Local Government Act 2003 (provisions that do not count as prohibitions on charging for the purposes of section 93(2)(b)) after paragraph (c) insert—
“(d) section 100(2) of the Local Transport Act 2008 (well-being powers of Integrated Transport Authorities and combined authorities),(e) section 102C(4) of that Act (Integrated Transport Authorities),(f) section 10B(4) of the Transport Act 1968 (Passenger Transport Executives), and(g) section 113B(4) of the Local Democracy, Economic Development and Construction Act 2009 (economic prosperity boards and combined authorities).””
Lord Beecham
Lord Beecham
Amendment 119F and the other amendments in the group refer to the additional permitted governance arrangements contained in the schedule. The legislation as drafted allows the Secretary of State to make provision for changes in such arrangements. The thrust of these amendments is to ensure that the changes stem from proposals made by the individual authorities affected, rather than being initiated from Whitehall and the Secretary of State himself. The amendments go on to refer to the principles upon which such changes should be made. Clause 9BA(6) says that:
“The conditions are … that the operation by the authority of the proposed arrangements would be an improvement on the arrangements which the authority has in place for the discharge of its functions”.
That seems to me an unnecessarily narrow prescription. They ought to be, as the Bill goes on to say,
“likely to ensure that the decisions of the authority are taken in an efficient, transparent and accountable way”.
My amendment incorporates that phrase, but goes on to say that the arrangements would be appropriate for all local authorities, or for any particular local authority, to consider and—this is the important part of the amendment—that the arrangements are consistent with the principles of localism and representative local democracy, a phrase that, as far as I am aware, does not appear anywhere else in the Bill.
In our discussion at Second Reading and from time to time in Committee, noble Lords on all sides of your Lordships’ House stressed the importance of representative local democracy as a necessary part of any localism agenda. That should be reflected in the consideration of any Government’s arrangements. I do not think that it is necessary to confine any changes to where they would after all, in the view of the Secretary of State, represent an improvement. There is no particular need, in my judgment, for that. They should certainly not represent any lessening of the efficacy of those arrangements, but they could be different without necessarily representing an improvement, in the eyes of the Secretary of State, as long as they meet the criteria of transparency, efficiency and accountability and are consistent with the principles of localism and representative local democracy. That should be sufficient.
I hope that the Minister, if she is dealing with these amendments, will regard them as friendly rather than unfriendly. They are designed to reinforce what is said to be the thrust of the legislation but in a way that, first, places the initiative with the local authority rather than the Secretary of State for providing that the criteria are met, but secondly—again, I stress this—emphasises that the principles of representative local democracy should be met in any such change. I beg to move.
Baroness Hanham
My Lords, we debated both these amendments in Committee. We accept that most proposals for additional governance models will come from local authorities. That will be how the impact will go given their expertise as practitioners. However, Amendment 119F still fails to recognise that ideas and proposals about new governance models may also come from other sources. The amendment says that the Secretary of State cannot do anything without having a proposal put to him. We need to make it clear that those proposals could come not only from local government but from local government representatives, think tanks or research units. Therefore, they might not be sufficiently well formed for the Government to take them on board. Saying that the Secretary of State may implement something only after a suggestion has been put forward may be restrictive, although the noble Lord is also saying that the Secretary of State should not be able to dream up a form of governance and then try to implement it. That is not the sense of this legislation. I hear what the noble Lord says, but that is not the intention.
In any case, if the Secretary of State decided to do that, he would be forcing local authorities to do something that they may not want to do and that is not the intention behind these provisions. We are not going to force local authorities. They would not have to adopt arrangements set out in any regulations made under this provision. This is an empowering clause not a diktat clause.
In Amendment 119G, the conditions that the noble Lord suggests are, if I may put it politely, less useful for local authorities than the existing ones. It does not seem unreasonable that there should be an explicit requirement that any proposed new arrangements should be an improvement on what is already there. There are three areas of governance listed in the Bill and anything else would have to be an improvement on what is there. I believe that the existing conditions give clarity for local authorities that may be considering submitting a proposal and we would not want to change that.
Finally, I remind noble Lords that any regulations made under this provision would simply extend the range of choice of governance models available to local authorities. They would not have to adopt those arrangements. They would be one more in addition to that list of three if somebody can think of something remarkable to do.
I hope that with that explanation the noble Lord will be able to withdraw his amendment.
Lord Beecham
I am grateful to the Minister although it is entirely unclear who would judge and on what basis whether the change was an improvement or not. However, in the circumstances, I beg leave to withdraw the amendment.