Lord Beecham
Main Page: Lord Beecham (Labour - Life peer)(13 years, 2 months ago)
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Lord Jenkin of Roding
I very much welcome what my noble friend has said. I shall refer to this a little later when we come to the Amendment 155 group.
Lord Beecham
My Lords, I welcome the noble Baroness’s acceptance of the concerns that were raised and their reflection in this group of amendments. If we could have similar co-operation over the rest of the Bill, we would be delighted—and surprised.
Baroness Hanham
My Lords, I gave a similar commitment in Committee to consider the amendments which aimed at removing overly prescriptive and complicated arrangements on necessary regulation-making powers in order to simplify and strengthen local government’s scrutiny arrangements. Having considered the issues carefully, including with the Centre for Public Scrutiny, I am pleased to bring forward amendments which achieve a number of these aims.
On the removal of unnecessary restrictions on referral of matters by non-committee members, Amendments 134 to 139 remove prescription about matters which may be referred to a scrutiny committee by councillors who are not members of the scrutiny committee. In future, these councillors will not be restricted to the referral of local government matters only. Instead, they may refer a wider range of matters to scrutiny committees for consideration, thus enhancing their role as advocates of their local communities.
In terms of referral of matters to the scrutiny committee, the amendments broaden the range of issues that can be brought before that committee by non-committee members. It will, of course, remain for the scrutiny committee to decide what course of action is appropriate following any referral, as is the case now.
With regard to local improvement targets and local area agreements, Amendments 140, 142 and 147 remove the link between local government scrutiny and local improvement targets in local area agreements. Partner authorities will be required to have regard to the reports and recommendations of scrutiny committees that relate to any of their functions exercised in relation to the committee’s area or residents of that area. This empowers local authorities to hold partner authorities to account for wider activities they undertake, thus ensuring that local people have a say on matters that affect them.
On the simplification of local government scrutiny arrangements, our remaining Amendments 132, 133, 141, 143, 144, 145, 146, 148, 149, 150 and 164 place the scrutiny committees of non-unitary district councils into an equivalent position to those of other authorities. They enable scrutiny committees in non-unitary district councils to hold partner authorities to account, and at the same time the amendments greatly simplify the scrutiny provisions and remove delegated powers of the Secretary of State.
I hope that noble Lords will agree that these amendments represent an improvement to the provisions, and will therefore be happy to accept them.
Lord Beecham
My Lords, I confess that I find it difficult to keep up with the speed of the amendments, but I will try. I hope that noble Lords will forgive me if I have misunderstood something. I say again that I welcome the thrust of the amendments in this group. However, I am not clear about Amendment 133, which refers to page 215 of the Bill. It appears to delete a reference to scrutiny of crime and disorder matters. I may be wrong, but as I read it, the amendment takes out the obligation or possibility of an overview and scrutiny committee scrutinising the police. I may have that wrong: it does not sound right as I say it. However, looking at the drafting, I wonder whether the amendment has that effect. New Section 9F states:
“An overview and scrutiny committee of a local authority may not discharge any functions other than … its functions under this section and sections 9FA to 9FJ, … its functions under section 19 of the Police and Justice Act”.
I would like confirmation that it will still be possible to scrutinise such matters.
I presume that the passenger transport authorities that we have just referred to, with their extended powers, would potentially be subject to scrutiny as a local authority partner. If that could be confirmed, I would be delighted and would congratulate the Minister on this group of amendments.
Baroness Hanham
My Lords, I am sure that there is a fantastic explanation for this, but I am bound to say that at the moment I do not have it to hand. I am sure that the intention is to ensure that scrutiny continues, because that is our whole purpose. If I get a note in the coming seconds, I will share it with the noble Lord. If I do not, I will write with the answer and apologise for not being able to respond in person.
Lord Beecham
Lord Beecham
My Lords, the amendment deals with matters affecting a more controversial element of the Bill: namely, the position relating to elected mayors. It deals with the power of the Secretary of State to make various regulations and prescriptions concerning the election of such mayors, to which new Section 9N in the schedule also relates. I note that the Electoral Commission has taken the view that:
“Elections for Mayor are often exciting local affairs, with colourful personalities clashing on issues relevant to their area”.
That is an interesting piece of publicity for the concept, which my noble friend Lord Adonis will undoubtedly confirm. However, there are some reservations, to put it mildly, about the strength of the argument behind it, which suggests that elected mayors are a superior form of local governance calculated to promote greater interest in local democracy and a higher turnout.
Baroness Hanham
My Lords, I thank noble Lords for raising these matters. I have an immediate answer to the noble Lord, Lord Beecham, about whether the orders would come to Parliament: where there is a proposal for a referendum, that is an affirmative order in Parliament. I think I explained that in Committee. It is Parliament’s decision brought forward at the time of the secondary legislation. Mayors will not be forced on any cities, as I have said on many occasions, but cities will be obliged to take it into consideration in a referendum and those will all come to Parliament.
Amendment 151A seeks to take away the power of the Secretary of State to make regulations setting the date of elections for, and the terms of office of, elected mayors. As the noble Lord, Lord Adonis, and the right reverend Prelate the Bishop of Birmingham have said, Amendment 151C seeks to provide that any first mayoral elections shall take place no later than the first date of elections in the area. As the noble Lord, Lord Adonis, explained, that would be any election that was likely to take place after a referendum on 15 November 2012.
As I have explained previously, the regulating power would allow for an earlier first election than May 2013. Such an approach would be in line with previous practice, where first elections for mayors have on occasion taken place in October, before reverting to the usual May cycle. I know the right reverend Prelate and the noble Lord, Lord Adonis, have had discussions with the Secretary of State about this. The most encouraging I can be is to say that the issue is well understood; no decisions have yet been taken on it but we are due to produce secondary legislation before the end of the year and decisions will be taken before then. I am sure the noble Lords will be involved in some of the discussions on that. I cannot give a firm commitment at the moment that that will happen but, as I say, there is a very clear understanding of the proposals made and the reasons and rationale behind them.
Those were not very long answers but they were not very long amendments. I ask noble Lords not to press their amendments in the light of my response.
Lord Beecham
My Lords, I am grateful to the noble Baroness for her assurance that parliamentary approval will be required before designating any authority to have a referendum. However, I am surprised and disappointed that it should be thought necessary for the Secretary of State to prescribe a referendum when it is evident from the absence of any requisition by a mere 5 per cent of the electorate that there is any such interest from the local community to start with.
Moving on to the amendment tabled by the right reverend Prelate and supported by my noble friend, I find it surprising that it should be thought that paralysis would ensue if there was a delay of a year between the referendum and a subsequent mayoral election. It could even have been argued that it would have been better to have followed the precedent of the 1973 local government reorganisation, when a shadow authority was elected and did not actually take office for a year. That actually gave the incoming authority time, on new boundaries and all the rest of it, to assimilate the problems of the area and develop an appropriate response, changing structures and the like. To suggest that it is essential to move straight into the position where the nature of the authority changes during the year strikes me as illogical, potentially disruptive and damaging, and in fact onerous for the newly elected incumbent, should there be any newly elected incumbents to that position. He or she would be entering into office half way through the year, unable to do very much at all about the existing budget, and contending with structures that would be difficult to rearrange in a short time.
Moreover, in terms of cost, surely it would be less expensive to have an election coinciding with the normal municipal election in the following year. I quite take the point made by the noble Baroness that there have been some instances of mid-year referendums, but if one is looking at the issue of cost it is, I should have thought, clearer that there would be a cost saving to have them at the same time as the local election. Indeed, that point has been made for us, conveniently, in connection with the debate over the timing of the elections for police commissioners, if indeed we are to have those.
Lord Adonis
Is my noble friend aware that in only one of the cities in which referendums are going to be held next May will there be a municipal election in 2013? In all of the other cities there would need to be a special election held in May 2013 if the election of the mayor were to take place anyway. I assume that my noble friend does not think that paralysis is an issue. I do not understand the read-across with shadow authorities at all—a shadow authority has been created, whereas the mayor by definition has not been elected, so that point does not hold. I assume that my noble friend, in his antipathy to mayors, does not think that it is a good idea to delay by a full two years the interval between a positive referendum result and the first election of a mayor.
Lord Beecham
I am certainly tempted to think so, but I will resist the temptation. In any event, what would be the worst thing of all, I suspect, is the coincidence of a police commissioner election and a mayoral election. We would then have two elections which would be, and I quote again,
“exciting local affairs, with colourful personalities”,
with one running for mayor and one running for police commissioner, and, quite conceivably, on conflicting manifestos. I think that that would be an absolute recipe for confusion and the worst of all possible worlds. We will revert, no doubt in a couple of days, to the issue of the timing of any police commissioner elections, but if the current intention of the Government is to proceed in November, then I think that that makes the proposition advanced by the right reverend Prelate and my noble friend quite difficult and untenable. I hope that the Government will think again, or think further, about the proposition that has been put to them, and will in particular avoid that coincidence.
For myself, I think the shadow proposition would actually be better, but of course there is not an amendment to that effect, so I cannot very well move it. I think the worst of all possible worlds would be police commissioner elections and mayoral elections in however many authorities there will be—there are 11 authorities coming forward. So I hope that the Government will, on this occasion, prove unbending. I beg leave to withdraw my amendment.
Lord Tope
My Lords, I thank the Minister for expressing her sympathy for what we were saying so well tonight. We of course welcome these amendments. I had the distinct impression that because of this not being perhaps a major part of the Bill, the Government had not properly taken account of the effect that if those councils which wished to change their governance arrangements now, as soon as they are able to under this Bill, had whole council elections, as we have in London and a number of other parts of the country, they would be waiting until after 2014 to be able to make the changes. Those councils which had whole-council elections this year would have to wait another four years to do it. That made no sense so I am pleased that the Minister recognised that and I welcome these amendments.
The amendments will be particularly welcome in a number of councils—certainly ones in London that I know of—which have, in effect, already changed their governance arrangements but hold meetings of the executive after the committee meetings. The meeting of the executive lasts for five minutes and agrees with every decision just taken by the committee. That is the procedure they use in order to get around the system as it is at the moment. It would clearly be even more of a nonsense if that sort of thing were to carry on for another two or three years. I welcome these amendments very much and I know that they will be welcomed in a number of councils, including my own, which are intending to make these changes as soon as the law permits.
Lord Beecham
My Lords, the ingenuity of the noble Lord’s colleagues defies description. I certainly welcome this sensible amendment. However, it is timely to say a word in favour of the leader and executive model and, in particular, to draw attention to the one part of the recent publication by the noble Lord, Lord Adonis, with which I agree. In relation to elected mayors, the paper makes a strong point. I told him that I agreed with something he had written and he was surprised. The relevant part is the emphasis that he makes about the need for a strong and independent scrutiny function, with which I entirely agree under whatever system is operated—be it mayoral, leader and executive or a straight committee system.
There are those who are still in love with the old-style committee system; the notion that you have a collection of Socratic city elders engaged in philosophical dialogue about the affairs of state in a particular borough or authority. I am bound to say that that does not accord with my own experience, particularly after serving for many years as chairman of committees, leader of the council, and so on.
When I departed to the Siberian power station of the arts and recreation committee, having given up the leadership and any other executive position—by choice I may say; it was self-imposed exile—I discovered that as a back-bench member of the traditional committee system one’s influence was pretty limited. When you are in the chair you can move things on quite briskly: you have an agenda and you get it through. When you are a back-bench member you usually have a political group meeting beforehand. It may last about an hour and there are 12 or 15 of you, which gives an average of four or five minutes each. The point of the formal meeting is to get it over with as quickly as possible. In reality, very little of the purported scrutiny takes place in the traditional committee system nor is there very much influence over policy.
That was summarised for me most effectively one day—I hope your Lordships will forgive this brief anecdote. I had missed a committee meeting of the arts and recreation committee but went to the next one. I read the minutes, which said that a member had raised a question about birds eating the grass seed in the Leazes Park allotments. I thought to myself, “Has it really come to this?”. We had an £800 million budget, with goodness knows how many problems and opportunities to debate, and the most the member could think of to raise at a committee meeting was birds eating grass seed at an allotment. I do not say that that entirely characterises the committee system, but there is some danger of that happening.
The main thrust of my, perhaps somewhat tedious, observations is to recommend that, whatever the circumstances, there must be a strong and independently sourced scrutiny role, not only to hold the executive to account, because perhaps too much of scrutiny has been based on a retrospective look at the actions of an executive, but to look forward, and, as it should be, in an unwhipped forum, at policy, development and so on. That is not incompatible with a committee system, but in reality, in my experience, it rarely took place that way. It needs a push for strong scrutiny and I hope that irrespective of the provisions of the Bill, the Government will encourage authorities to maintain and enhance that scrutiny role, whatever type of authority they are and whatever model of governance they adopt. I certainly would not oppose these amendments to give councils the option to choose their own system.
Baroness Hamwee
My Lords, my noble friend, who I understand has executive responsibility for grass seed in the London Borough of Sutton, along with allotments and other matters, would have wanted to have come back to say that these amendments are not about the merits of any particular system, but about local decisions about what is appropriate for each local authority.
I think that the noble Lord, Lord Beecham, would agree that scrutiny is a developing art rather than a science, and that the experience of different systems over the past 10 years has contributed to an extension of that expertise.
This is not much of an anecdote I am afraid, but my first experience of scrutiny was as a member of what we then called the performance review committee, which was formed largely to respond to what the Audit Commission had to say about what was going on in the authority. My goodness, things have moved a long way since then. I agree with the noble Lord that if scrutiny is to be good, it needs to be much more constructive than simply looking back and commenting on decisions and actions that have been taken.
I do not think that what underlies these amendments needs in any way threaten the development of scrutiny. Further, I should declare an interest as a member of the advisory board at the Centre for Public Scrutiny. It will be interesting to see how the art of scrutiny develops further under another mix of arrangements across authorities.
Lord McKenzie of Luton
My Lords, I follow the noble Baroness, Lady Hamwee, on this point. Your Lordships’ House should give the noble Lord, Lord Jenkin, great thanks for the diligence with which he has pursued this issue right from the start of the Bill. He has been consistent in challenging the unnecessary powers that have littered the Bill and, going through the list before us tonight, I do not have any problem with the amendments, with the possible exception of Amendment 204. As the noble Baroness says, planning has become, almost overnight, incredibly contentious. We are not now going to reach the substantive provisions until October and I think that it would be better to view them in the round and as a whole. It would be quite difficult to see the lack of guidance somewhere in the system relating to the duty to co-operate. It is a departure and a new issue in planning. It is the replacement of regional planning. It is very important that we get it right.
I accept the noble Lord’s point that when an individual authority is going to consult it does not need guidance on that. Local authorities are well experienced in doing that, but this is guidance in the context of some new planning requirements and it would be premature to do away with the prospect of government having some guidance on the generality; not just bilateral consultations and relationships between authorities, but multilaterally and where the sub-region fits. The guidance that might flow from this could be really helpful in that regard.
I do not wish to detract from the fantastic job the noble Lord has done in leading the charge on these issues. That is the only issue I take with the list that is before us.
Lord Beecham
My Lords, I warmly congratulate the noble Lord, Lord Jenkin, on his numerous amendments, particularly those he has moved this evening, with the possible exception—I agree with my noble friend Lord McKenzie—of Amendment 204. It is not that I wish to see detailed prescription about how the duty to co-operate should be exercised. My concern has been about what will happen in the event that local authorities do not co-operate. I have voiced that concern on previous occasions. There are cases where there are difficulties on land allocation for housing and that kind of issue where there needs to be some mechanism to resolve a dispute or to be available when co-operation is not forthcoming. That apart, I certainly endorse the noble Lord’s view about the highly detailed prescription around referendums. Indeed, one could go further. I notice in new Section 9MC, for example, that regulations include,
“the manner in which a petition is to be presented to a local authority”.
That is presumably on one knee, held up on a cushion or something. It is bizarre. There is far too much of all that.
I also cannot understand how anyone can believe that a change of governance in the town hall is going to excite the local electorate. It is just arguable that the mayoral referendum might, although as I indicated, turnouts would not suggest a huge demand. But if an authority chose to go from a committee system to a leader and executive system, I do not think that that would be much argued about and discussed in heated fashion in the ward that I represent, the one represented by the noble Lord, Lord Shipley, or frankly anywhere.
This whole referendum process, which we will debate in a different context later on, is going too far. It may be that the Secretary of State now fancies himself as Napoleon III—possibly not. But it is too easy a device to resort to. God help us if we have a series of referendums about this at great cost with very little participation. It is the wrong mechanism. Councils should be trusted in ordinary circumstances—I take the point about a change to the mayoral system—to come to their own conclusions about the form of governance. It is not a matter about which the electorate is in the least concerned. If people were, they could exercise their views at the ballot box in the ordinary way.
I am very much in sympathy with the noble Lord’s amendments and when we return to referendums in a different context later I hope that there will be some cross-party support. I agree with my noble friend Lord McKenzie that we need to look again at the issue of the duty to co-operate, which is in a different category.
Baroness Hanham
My Lords, we have already removed restrictions which applied to local authorities when they are deciding to change their governance arrangements. We have debated those this evening. Amendment 165 seeks to remove further prescription and restrictions imposed by the previous Government on local authorities in relation to changing their scheme of elections. Amendment 165 inserts a new clause into the Bill that removes in their entirety the current rules that stipulate that district councils may only resolve to change their scheme of elections during permitted periods. Permitted periods would last just over six months and occur only every four years.
We believe that local authorities should be free to make such decisions at a time that is right for them and their local communities, not during a time period dictated to them by central government. Accordingly, this amendment provides that in the future district councils in England that wish to change their scheme of elections will be able to resolve to do so at any time and will be able to specify the date on which they will hold their first whole council elections. In order to prevent local authorities from repeatedly changing their electoral schemes, and the uncertainty and disruption this may bring, Amendment 165 provides that, once a local authority has resolved to change its scheme of elections, it may not make another such resolution for a period of five years.
The current position, where district councils in two-tier areas are prevented from holding elections in the same year as the county council—that is in the fallow year—is also maintained. This is to ensure that there is clarity among local people about the role and functions of different tiers of local government in their area and to avoid voter confusion. In an area where there is no county council, no such restrictions on the date of the first whole-council election will apply. The decision will be entirely for the council concerned. Amendment 244 makes consequential amendments to the 2007 Act.
Baroness Hamwee
My Lords, the word that I stumbled over when I first read Clause 14(2) was “just”. Not justice, which of course is important, but “just because”, which is not the sort of language that one normally sees in legislation. However, since the noble Lord has spoken, and having heard what he said, which I found extremely helpful, the word that now concerns me is “might”. Clause 14(2)(a) refers to a view that a decision-maker,
“took, or would or might take”.
How does “might” stand in the context of the distinction between predisposition and predetermination? I am far more confused than I was 10 minutes ago.
Lord Beecham
My Lords, I support the amendments tabled by my noble friend Lord McKenzie—especially the second amendment in the group. We are entering difficult territory, as outlined clearly by the noble Lord, Lord Pannick. At the very least, given the potential difficulties that might arise from a change, there ought to be a proper, evidence-based review, and three years should be sufficient for that. There are clear dangers in the way that the clause is drafted, and we cannot overlook the political background to its production. Its provenance lies in political debate, with those on one side claiming that it is improper to prevent councillors campaigning on issues and then voting on them. Of course, that is perfectly legitimate in the context of any council policy such as education, social care or whatever: but not in a situation that is quasi-judicial, which is how planning and licensing decisions should be taken.
I am afraid that the rather loose terminology deployed on political platforms colours one’s view of the potential impact of the proposal in Clause 14. It also raises the possibility of undue pressure being applied to elected members who will no longer have the defence that, “I must not indicate how I am going to vote because I am obliged to look at all sides of the case”. That might be regarded as being swept away. I am not saying that it is the intention of the clause to sweep it away, but that inference might be drawn by those seeking to solicit the support of members. One must not assume that that solicitation will always be on the part of electors. It may be on the part of those on the other side of the proposal: namely, the developers. It is invidious to place members in that position. They need the protection of the kind of approach that the noble Lord, Lord Pannick, has enunciated.
I hope that the Minister will look again at this, particularly at Amendment 165A, and whether that can be deployed to mitigate the impact of Clause 14. In any event, however, I hope he would accept, or just consider accepting, Amendment 165B, which would allow the situation to be reviewed in this rather delicate area on the basis of evidence rather than surmise. We are looking, at this late hour, for some commitment to think again and talk again about this in order to avoid potential future difficulties for elected members and officers of the council as well. It would also provide clarity for public applicants and objectors alike.
Lord Taylor of Holbeach
Nobody will deny that this is a complex area. Previous position and predetermination can meld into a situation where drafting legislation can be difficult. I want to reassure noble Lords on what Clause 14 is about and what it is not about. The provision in the Bill does not have any effect on the legal effects of a local authority member being predetermined. The legal position is, and will remain, that a local authority member making a decision should have an open mind. Whatever he or she may have said about the way they were going to vote or whatever campaigns there were, we are in practical politics and we know that people will campaign on issues. The clear point of focus of any legislation and the law, currently and as a result of Clause 14, is that the decision should be made with an open mind.
I recognise that the noble Lord, Lord Pannick, is one of the most eminent lawyers in the House, and I say that knowing there are many eminent lawyers in this House. However, I hope he will agree—I think he does, along with the noble Lord, Lord McKenzie—that the courts have been very sensible in recognising that politicians hold views and there is nothing wrong with them holding views. The way we drafted these positions in Clause 14 is to make it clear to those less well versed in the law—and that is certainly true of the majority of us—that politicians are free to talk to the public about issues and free to campaign on important issues. It will ensure that, at the end of the day, prior indications of an opinion will not be treated as evidence of predetermination.
Perhaps I can reassure the noble Lord, Lord McKenzie, that the only evidence that can be presented to show that a person does not have an open mind is that which exists at the point of the decision-making process. Therefore, prior comments, commitments and pledges do not matter as long as the local authority member clearly listens to the evidence and makes his decision. It may accord with his prejudice or his predisposition, but any evidence that he has a closed mind can only be made at the point when he makes that decision and not at any point prior to that.