Lord Greaves
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Lord Greaves
“Purpose of this Act
(1) The purpose of this Act is to promote a political and administrative system and culture which—
(a) is based on the principle that each decision should be made at the lowest practical and effective level, and that where there is a conflict between decisions at a higher or more local level there is a presumption that the local level will prevail unless there are clear and over-riding reasons why it should not;(b) is underpinned by basic rights for all persons and safeguards against arbitrary discrimination against any person;(c) focuses public decision-making on bodies which are elected, representative and accountable;(d) may incorporate minimum standards for the provision of public services that may be established by Parliament, government and elected bodies at a higher level than that at which decisions are made, but otherwise welcomes diversity of provision on the basis of locally determined needs and preferences;(e) includes a restriction against regulations and orders by government and bodies at higher levels than the minimum absolutely necessary;(f) shapes the structures of local government in ways that are designed to facilitate the involvement of local citizens, individually and as members of their communities and neighbourhoods;(g) welcomes and encourages the involvement of local citizens in the design of such structures and participation within them; and(h) encourages the formation of bodies by local citizens in which they may organise to influence public decision-making, take part in processes of local governance and help to provide local services.(2) A public body or public official shall, when acting under the provisions of this Act, have regard to the political and administrative system and culture described in subsection (1).
(3) In subsection (2) “public official” means a government minister or employee, or an employee of any body responsible for making decisions on behalf of the government or a local authority.”
Lord Greaves
My Lords, as it is the beginning of Committee, I should declare my interests yet again. I am an elected member of Pendle Borough Council, vice-president of the Open Spaces Society and a member of the British Mountaineering Council and its access, conservation and environment group. There may be others, which I shall declare if they arise as the Bill progresses.
Topically and coincidentally, an article by Julian Glover in the Guardian this morning, headed “The coalition still hasn't worked out the principles that bind it together” states:
“Last year's coalition agreement was brilliant at forcing a quick start, but useless as a guide to the government's founding values now the pace is slowing. It provided a to-do list of reform but avoided deep questions that must now be confronted: what is the coalition's attitude to democratic accountability, the role of markets and competition in public service? What does it mean by localism? To what extent should empowerment be accompanied by a harsher willingness to allow people to fail if they do not act? Above all, is the reconstruction and fragmentation of the state ideological rather than a consequence of deficit reduction?”.
Those questions are fundamental to the Bill in front of us.
Localism is not new, although the word “localism” used in this context is fairly new. The first person whom I could find using it was David Blunkett in 2004, and what he said then is not much different from what the Government are saying now.
The amendment seeks to state at the very beginning of the Bill that its purpose is to promote a political and administrative system and culture which is based on localism—localism as defined in the amendment. Proposed new subsection (1)(a) states that it should be based on the principle which in Eurojargon is known as subsidiarity and that,
“there is a presumption that the local level will prevail unless there are clear and over-riding reasons why it should not”.
It is not clear that that presumption is uniformly and consistently applied throughout the Bill. We have some very localist provisions; we then have some very detailed national prescriptions; and they rest side by side as one reads avidly through the 430 pages of the legislation. I do not want to be too critical; I am trying in the amendment to provide the Government with a friendly challenge to look at some of the inconsistencies that may exist and to tell us clearly what their view of localism is.
Proposed new subsection (1)(b) states that localism is,
“underpinned by basic rights for all persons and safeguards against arbitrary discrimination against any person”.
It must not be local majoritarianism; it should be based on the principles of democracy in which basic individual rights are fundamental.
Proposed new subsection (1)(c) states that localism,
“focuses public decision-making on bodies which are elected, representative and accountable”.
All Governments in the past few years have said that they want to decentralise and get away from the controlling hand of Whitehall and Westminster in the detailed way in which it has developed in this country. It is not clear in all cases, either with the previous Government or with this one, that the predominant role of democratically elected authorities is high in their mind; in fact, it is not clear that local government is always held in high regard by the people at the centre. Yet true localism must be based on democracy.
Proposed new subsection (1)(d) deals with the knotty problem of minimum standards. There was considerable and interesting discussion in Committee in the House of Commons as to how localism interacts with a belief that in many areas—certainly, for example, in social care—national government has not only the right but the obligation to lay down minimum standards before local diversity can apply. The question of what those minimum standards should be and in which areas they should apply is fundamental and it is not clear that the Government have given this issue the clear thought required.
Lord Jenkin of Roding
Without wishing to prolong the debate, I should like to endorse what the noble Lord, Lord Beecham, has said and to thank my noble friend for the swift acceptance of two of the substantial amendments to which I have put my name on the Marshalled List.
When I had the opportunity to discuss matters very briefly with the Minister’s right honourable friend the Secretary of State, he said that he thought that we were going to be able to reach accommodation on some of the points that had been made at Second Reading. My noble friend has done exactly that, and I express my gratitude.
Lord Greaves
My Lords, the Minister’s last two announcements are extremely welcome and I am quite prepared to trade my amendment for them. It is good news all round. As the noble Lord, Lord Jenkin, has just said, it bodes well for future debate.
It is only in the House of Lords that the noble Lord, Lord Beecham, or anyone else, would raise in evidence events that took place more than 100 years ago. While the short-term effects of Joe Chamberlain’s and the other Liberal Unionists’ defection was extremely damaging to the Liberal Party, the slightly longer-term result of it was that the Liberals gained their greatest ever victory in the 1906 election, in which Joe Chamberlain and his allies in the Conservative Party were roundly trounced. If we are looking for historical precedents, there is one.
Lord Beecham
Would the noble Lord care to recall what happened at the subsequent general elections?
Lord Greaves
The Liberal Government were returned to power with a smaller majority in both elections of 1910. That is a historical fact. Unfortunately, the First World War then intervened and caused all sorts of bother.
I thank everyone who has taken part in this useful debate, which has set the tone for a lot of the detailed discussion to come. The noble Lord, Lord Jenkin, quite rightly said that the details in the Bill will determine what happens if and when it is passed. The underlying values—or, as he called them, principles—of the Bill and the conflicting principles that many of us see within it will be a continuing theme as we debate the detail, and it is right that we should continue to relate the one to the other.
The noble Lord, Lord Beecham, hit the nail on the head and homed in on the most fundamental part of the amendment: the importance—I do not use the word “primacy”— within any local democratic system of democratically elected local government. We can argue about the structures and whether they are good or bad—about their size and the way they work and so on—but unless there is a presumption that decisions locally will be taken by those who are elected by and accountable to the people in general, the whole system risks becoming anarchic. As we go through the Bill, a recurring theme will be the extent to which what is proposed in it strengthens or undermines local government. That will be absolutely vital.
The noble Baroness, Lady Farrington, raised a fundamental question about what you do when people in a neighbourhood or a community, which are two different concepts—a neighbourhood is a place where people live and a community is the way in which people interact with each other, although they are sometimes, but not always, the same—rise up in a way that you might think is populist, unreasonable or hysterical but which is, nevertheless, in the noble Baroness’s words, ferocious. Those of us who have been around in local government and local campaigning for a long time have all known this and have all seen it. It is very difficult. Without the buttress of democratically elected local government there is no way in which such forces can be resisted unless there is an imposition by bureaucratic bodies from above, which, philosophically and fundamentally, is not the way to do it.
I remember a proposal a few years ago to open a residential home for people suffering from schizophrenia in a former Quaker meeting house. The reaction of the people living in a wide area around it was ferocious. It was a difficult situation but the councillors across the board stood firm, behaved in a reasonable way and gave permission for it. That home is still in operation and no one has a word to say against it. Councillors have to take decisions on the basis of reason and not on the basis of public reaction on every occasion.
This is very difficult just before an election. When we run a council we have a fundamental principle that in the three or four months before an election we never introduce a new traffic calming scheme. This is because everyone is in favour of a traffic calming scheme until it is put in and then everyone finds things wrong with it. However, you sort out the problems and a few months later everything is all right. Another thing you never do is change the arrangements for waste collection and recycling. You do all these things in the summer and well before elections come along. You sort out the problems in a sensible way and everyone then is, hopefully, fairly happy.
There has to be a certain amount of such manipulation, otherwise you cannot do things—at least, you cannot do things and get re-elected. Nevertheless, democratic government is fundamental to it all. We on the Liberal Democrat Benches believe that this is an ideological matter. That is not to say that it is not also a practical matter. The practicalities set out in the Bill relate to how you carry out matters in line with your underlying ideological principles. If it is not ideological, I do not know why it is called “Localism”. “Isms” tend to be ideological. I think “Localism” is a silly name for the Bill. Nevertheless it is the name it has been given. I was musing as to whether we would have a “Conservatism” Bill, or a “Liberalism” Bill, or perhaps a “Conservatism-Liberalism” Bill on the lines of Marxism-Leninism, which I never quite understood. I thought then that perhaps the Finance Bill each year should be called the Optimism Bill.
On that note, I thank all noble Lords for taking part in the debate and look forward to debating some of the more practical things that we will come on to. I beg leave to withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, this group might take us a little less time. In moving Amendment 2, I shall speak to Amendment 3, which is in the same group.
These amendments probe in what circumstances a local authority would use the general power to do anything outside the United Kingdom. I do not imagine that local authorities will be encouraged to carry out military adventures in new parts of the Middle East, or indeed anywhere else. What are those things outside the United Kingdom that local authorities cannot do at the moment and which they might want to do under the new general power?
Secondly, I want to probe in what circumstances an authority might want to do anything other than for the benefit of its own area or residents. Surely, local authorities are elected to serve and represent the interests of their own residents and to carry out services in their area. There are already means by which local authorities can do work for other local authorities, for example, and can carry out activities outside their area, but it is invariably with the consent of the local authorities in the areas outside their own area. What is it that the Government think that local authorities might do that they cannot do at the moment outside their area and not for the benefit of their residents? I do not know why residents would want to elect a local authority that spent a lot of its time and energies doing things for other people outside its own area. These are two basic questions. I beg to move.
Lord Beecham
Perhaps in the absence of any other contribution, I might make a suggestion to the noble Lord. I do not know whether my suggestion will appeal to the Minister, but there will be occasions when a local authority wants to do something, particularly overseas, which might be deemed to be outside its current powers. For example, it might want to do something in collaboration with authorities in the developing world; there might be relationships with a country or locality where help might be given with infrastructure or education. It might be that in a community or urban area there were people whose origins lay abroad, perhaps in the subcontinent or elsewhere, where there was some sort of disaster, and a local authority might wish to make a financial or other contribution.
I am frankly rather surprised that the noble Lord should take such a narrow view of these issues. We play a reasonably prominent role in the affairs of local government internationally—something that I have always personally eschewed, having neither the time nor inclination to travel to or from Strasbourg, Brussels or places further afield. But there are many in local government who do and who make a significant contribution to international co-operation, so I would have thought it was fairly obvious that it would be desirable to widen the possibilities here. Obviously, local councils in exercising any such powers remain answerable to local communities, and sometimes those communities would be among the first to press for action to be taken by the local authority or local government bodies as a whole. I myself, when I was involved in the Local Government Association, was keen to promote capacity-building in the Israeli-Arab municipal sector, for example. The association, through international local government bodies, has helped out in other places where there have been conflicts—Kosovo is a place in point. The noble Lord could be a little more ambitious in what he thinks local government might be able to do in cases that strike individual local authorities or groups of local authorities as ones where the expertise of local government and local communities in the UK might make a contribution. I hope that he will not press his amendment.
Lord Greaves
Does the noble Lord agree that everything that he has mentioned has taken place and is taking place, and therefore can be done under existing powers? What new projects or activities does he think ought to take place that would require the new general power of competence in these areas?
Lord Beecham
My Lords, I do not think that it is necessary for me to answer that. We are talking about a general power of competence; the less fettered it is, the better. It may be that individual actions have not been challenged, although at times of international disasters, when suggestions have been made that local authorities should contribute financially towards appeals that have gone out, that has been felt to be outside their powers. I am not suggesting that that would be a common practice but, if it is seen as a priority by a particular local authority, it should be open to that authority to do so.
Baroness Hanham
My Lords, of course we expect councils to act in the best interests of the communities that they serve, but we do not believe that it is for the Government to dictate what that means. Local authorities are, as we know, accountable through the ballot box and the other provisions of this Bill, not to mention our system of administrative law, which requires the statutory powers for any public authority to be exercised reasonably, in good faith and for proper purposes only. I think that that covers the questions that my noble friend Lady Hamwee has asked and sets into context the provisions in the Bill.
Lord Greaves
My Lords, I am not sure that I understood that last exchange; I shall read Hansard carefully so that perhaps I will understand it. I am grateful to the Minister for her response and to the noble Lord, Lord Beecham, for assisting her. These were probing amendments—nothing more—and I shall read carefully what has been said. On that basis, I ask leave to withdraw Amendment 2.
Lord Greaves
“Objective of the general power
(1) A local authority shall exercise the power conferred by section 1 with the objective of achieving sustainable development.
(2) In this section “sustainable development” means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs including the application of the following principles—
(a) living within environmental limits,(b) ensuring a strong, healthy and just society,(c) achieving a sustainable economy,(d) promoting good governance, and(e) using sound science responsibly.”
Lord Greaves
My Lords, this is an important amendment on sustainable development. There is growing concern that this Government are sidelining sustainable development despite their welcome ambition to be the greenest Government ever. At the moment, there is considerable uncertainty out there as to how sustainable development will be achieved by central and local government and how their commitments and goals will be taken forward. Funding has been withdrawn from the Sustainable Development Commission, which was the watchdog and adviser to the Government on their sustainability goals. Without this body auditing government output across Whitehall, it may be difficult to highlight and address government decisions that do not support the achievement of sustainable development.
In February, Defra released Mainstreaming Sustainable Development—The Government’s Vision and What This Means in Practice. There are concerns that this seeks to redefine sustainable development by placing greater emphasis on the economic pillar, as in the document priority is given to stimulating economic growth and tackling the deficit, both of which are, obviously, important matters. Then in this year’s Budget and the subsequent policy initiatives, the Government made it clear that they are taking forward a pro-growth agenda to address the economic deficit. None of us will disagree that that is required, but we must continue to take urgent and effective action to achieve sustainable development, to reduce our impacts on the natural world and to make the transition to a green economy. Such action must be in all sectors, covering the whole Bill—that is the purpose of the amendment—including the planning system, but not just the planning system, to ensure a consistent and co-ordinated approach.
The delivery of local priorities within a localist agenda that involves local people on a far greater scale than at the moment must continue to be linked with the delivery of larger-than-local national and international priorities. Certain critical goals need a shared approach. Achieving sustainable development is one of them. In 1983, the World Commission on Environment and Development, convened by the UN, was created to address growing concern about the consequences of the accelerating deterioration of the human environment and natural resources across the globe. The outcome of the work, the Brundtland report, Our Common Future, was published in 1987 and provided us with the well known international definition of “sustainable development”. Importantly, the report launched a comprehensive gateway to sustainability which included social, economic, political, institutional and environmental criteria. It established important broad principles which, to this day, have influenced environmental laws and planning in a wide range of countries, including this one.
In this country, in 2005, we adopted the sustainable development strategy, Securing the future. This strategy established the twin goals of living within environmental limits and providing a just society by means of a sustainable economy, good governance and sound science. These five guiding principles of sustainable development are repeated in the amendment. They are intended to underpin all policy and legislation and act as a lens through which all new proposals are viewed.
My fundamental question is whether this is still the view of the present Government. Do the Government accept that this view of sustainable development underpins all their work, not just planning activities? Does sustainable development underpin everything in the Bill? Do the Government still hold to the Brundtland definition and, if not, what is their definition now? Do the Government still accept that sustainable development is a means of balancing economic, social and environmental needs equally and bringing them together? Or is there now to be a presumption for development which is economically sustainable, even if not socially or environmentally sustainable—or less socially and environmentally sustainable than economically sustainable?
That fundamental question lies behind a great deal of current government legislation and activity. The coalition Government have been working on a presumption in favour of sustainable development to be included in the national planning policy framework, the NPPF. A draft of the presumption was released last Wednesday by the Department for Communities and Local Government. There are widespread concerns that the definition of “sustainable development” used for this purpose is significantly different from the Brundtland definition and gives the economy proportionately greater weight than the environmental or social aspects.
This is also a probing amendment. I hope that the Minister will be able to give me satisfactory answers. The more satisfactory they are, the more progress we will make on the Bill. This fundamental matter arises in a number of parts of the Bill, particularly in Part 4, “Community Empowerment”, Part 5, “Planning” and Part 6, “Housing”. I look forward to the Minister’s reply.
The Lord Bishop of Exeter
My Lords, I welcome this amendment with its intention to remedy what is at least a perceived gap at the Bill’s heart. Without it, or something like it—it may need a bit more work—the Bill does not yet contain an adequate definition of “sustainable development”. In fact, almost no definition of the concept is given in the Bill at all.
In Clause 95 there is a requirement for local authorities responsible for planning—district, county, unitary authorities and others—to co-operate in relation to planning for sustainable development, but little clear indication is given as to what this co-operation will entail or what it will achieve in practice. The notes to the Bill indicate that local planning authorities will also be expected to consider whether to prepare joint local development documents, but again such development is not defined.
As so much of the Bill is about planning, empowerment of local communities and new building, it is perhaps unwise to proceed without an associated statutory description of what sustainability means, particularly in these contexts. The noble Lord, Lord Greaves, has already referred to the most widely accepted and used definition of sustainable development—the Brundtland commission’s statement. That definition is still worth quoting. It says that sustainable development is development which,
“meets the needs of the present without compromising the ability of future generations to meet their own needs”.
It contains within it two key concepts—the concept of needs, particularly the essential needs of the world’s poor, to which overriding priority should be given, and the idea of limitations imposed by the state of technology and social organisations on the environment’s ability to meet present and future needs. This definition of sustainable development has as much to do with spirituality and culture as with the environment and economy—the two categories already mentioned.
A sustainable community has to be one that offers both a positive present and a positive future for all people—economically, environmentally, socially, spiritually and culturally. It is responsible to the needs of all and exercises careful stewardship of a community’s environment and its soul. In short, I suggest that true sustainable development is about sustaining the common good.
In an earlier debate on Clause 1, the noble Lord, Lord Greaves, spoke of the distinction between a neighbourhood and a community, between where people live and how people interact and behave. I suggest that true sustainable development has to do with both. If this Localism Bill is to have real value, it must also have the ability to ask not only who gains but also who may be excluded from the benefit of the ideas and proposals which it contains. Without some coherent definition of sustainable development at its heart, I fear that this may not be so.
Lord Taylor of Goss Moor
My Lords, I will speak briefly. I welcome two aspects of what the Minister said. The first is her reiteration of the Government’s support for the principles of sustainable development, which is important. The second is the fact—I have listened carefully and will read Hansard later—that she did not rule out setting out these principles in the Bill. We will have to see whether we can convince the Government to do it. Their open-mindedness at this point is very welcome.
I say to those who think that a thousand years of economic development prove that we do not need sustainable development that in that time some civilisations collapsed as a result of the overuse of their resources; I refer to central America, the desertification of the north African coast and, in my own area of Cornwall, the disappearance of the herring trade. Today we see more profound impacts on the environment, such as the destruction of the rainforests, and we should not sit content in this country and assume, just because until now we have survived quite well when others have not, that we have greater wisdom than civilisations that collapsed before us.
Lord Greaves
My Lords, again I am grateful to all noble Lords who took part in this debate, which has been slightly enlightening and has taken us forward a little. I am particularly grateful to the right reverend Prelate the Bishop of Exeter and to my noble friend Lord Taylor of Goss Moor for their strong support. As I listened to my noble friend just now, I thought that the greatest economic growth in this country during the past few hundred years was the Industrial Revolution, and how much better that revolution would have been—surely it would not have been stymied in any serious way—if environmental considerations had played a much greater part in development during that period instead of the massive attacks on the physical environment: the quality of air and all the rest of it. It has cost an enormous amount of money to clean it up since. It is not just economic growth, is it? It is the way you do it; it is regulation in ways that protect the environment and finding ways in which economic growth can be environmentally beneficial.
Lord Greaves
Lord Greaves
My Lords, Amendment 5 is grouped with an amendment from the noble Lord, Lord Wigley. I do not normally take the lead on matters Welsh in your Lordships' House, but there seem to me to be two important issues here. One is the matter in Schedule 1 —why local authorities in Wales are to be deprived of what we are told is going to be a wonderful thing: namely, the new general power of competence. I understand it is because the Welsh Assembly Government have said that they do not want it, but it is often the case in legislation that even if Wales and the Welsh Government do not want to make use of legislation in the short run, they are given a permissive power to adopt later, if they decide to do so, powers that are going to be introduced in England. There are a number of matters in the Bill for which that could be the case, and my question is simply: why is that not being done in this case?
However, there is a more fundamental thing. We often get Bills in which we get tangled up with devolution matters halfway through and have to try to untangle them at that stage. The basic reason for putting down this amendment was to ask the Government whether at this very early stage of the Bill they can make a clear statement on devolution and Wales to explain the basis on which Wales is included, and in many cases not included, in this legislation and how the Bill works in relation to Wales and devolved matters. I beg to move.
Lord Wigley
My Lords, Amendment 18 stands in my name and is grouped with Amendment 5. Before getting into my own comments, I warm to the latter comments by the noble Lord, Lord Greaves, in proposing Amendment 5, about the very complex model of devolution that we now have for Wales. Scotland has a fairly clear-cut model for which something is devolved or not devolved. In Wales, there are bits of Acts here, there and everywhere that are a nightmare for those who need to interpret them. It is something that the Government might like to look at at some stage in the interests of everyone and of getting some symmetry in the relationships that we have within these islands.
At Second Reading, I said that I would ask questions in Committee on the applicability of Clauses 1 to 8 to Wales. Your Lordships will be aware that local government in Wales is wholly devolved. That was established by the Local Government (Wales) Act 1994, when we were still under the Welsh Office. With the establishment of the National Assembly in 1999, responsibility moved from the Secretary of State to the Assembly. Following the referendum this March, full legislative competence came to the Assembly over these matters. I realise that that was after the Localism Bill had started its passage in another place, and I understand that some adjustments have been made to take that on board.
Amendment 18 is therefore very much a probing amendment. The Explanatory Notes with which we are provided state that Clauses 1 to 8 are relevant to England only. I realise that the notes do not have status in law, but they are none the less important for us in debate and therefore one takes notice of them. Yet Clause 5(8) refers to the effects of these clauses upon Wales. Clause 5(2) provides that:
“the Secretary of State may by order amend, repeal, revoke or disapply”,
statutory provisions if he thinks this may prevent local authorities exercising their general powers of competence in England. If these powers apply to England and Wales, quite serious questions arise about the implications for local government in Wales, and that runs through other parts of this Bill. As Clause 5(8) refers to,
“an order … that has effect in relation to Wales”—
those are the words in the Bill—clearly this is a possibility. Will the Minister give us some indication of the circumstances in which this could apply to Wales—some examples, perhaps, or some issues—and how often it is anticipated that these powers might impact on Wales?
Clause 5(8) also states that the Secretary of State must consult Welsh Ministers before using such powers in a way that impacts on Wales, so I shall press a little more on the meaning of consulting. If consulting allows the UK Minister to agree or disagree with his Welsh counterparts, if he agrees and carries on regardless, does that not undermine the devolution of local government issues to Wales as provided in legislation and as was assumed in the referendum that we have just had? I suggest that if there was provision for requiring a legislative competence Motion to be passed in the Assembly on each such order brought forward by the UK Minister indicating the Assembly’s consent to that, it would at the very least safeguard the devolved powers from being eroded by being overridden from Westminster. Otherwise, what measures do the Government intend to put in place to deal with any such disagreement? This is meant to be a helpful amendment to ensure that the power over local government in Wales is not clawed back to Westminster, and that clarity will be provided for those who have to live with its consequences.
I will briefly address Amendment 5, which was moved by the noble Lord, Lord Greaves, and is also in the name of the noble Lord, Lord Roberts of Llandudno. As things stand, by virtue of Schedule 1, as I interpret it, local government in Wales will continue to retain the power for the promotion of well-being, as laid out in the Local Government Act 2000, even though local authorities in England will be subject to changes under this Bill. Amendment 5 appears to have the effect that changes to local government in England will also apply to local authorities in Wales, but under paragraph 12 of Schedule 7 to the Government of Wales Act 2006 this cannot be done without a legislative competence Motion in the Assembly. The referendum in March confirmed the Assembly’s legislative competence in these matters. Is it the intention, therefore, of the noble Lords, Lord Greaves and Lord Roberts, to re-reserve these powers to Westminster? I would be glad to have the Minister’s comments on this, and indeed on both amendments.
Baroness Hanham
I will have to take advice about that because I was not expecting that question. I will write to the noble Lord and not hazard a guess because we might end up offending each other. If I may, I will make sure that he gets an answer to that specific question.
With that explanation, I hope the noble Lord, Lord Wigley, will feel able to withdraw his amendment. I think the noble Lord, Lord Greaves, was very much heading to get the sort of answers that I have now given, so I hope he will feel able to withdraw his amendment on the basis that I have given sufficient information.
Lord Greaves
My Lords, I am grateful to the Minister for that. I will read it carefully, and I will take advice from people in our group who are more Welsh than I am and see whether they agree with it too. On first hearing, it does sound a fairly straightforward explanation of where we stand in the Bill, which was the purpose of putting down the amendment.
The noble Lord, Lord Wigley, asked me whether I wanted to re-reserve powers. I do not, in any circumstances —this was merely a useful peg to pin a couple of questions on, which have been answered fairly satisfactorily.
The only question that comes to mind listening to the Minister, which she may not be able to answer, is how widely the Welsh Ministers consulted local authorities in Wales on whether they wanted the general power of competence. She may not have that information, but it is an open question that someone might have the answer to.
The noble Lord, Lord Wigley, suggested that the devolution settlement in Scotland was simple. It may be more straightforward than in Wales, but one of the last big Bills in which I was involved was the Marine and Coastal Access Bill in the previous Parliament. The whole relationship with Scotland was an absolute nightmare. It was all down to the details of the way in which the devolution settlement for Scotland affected a whole series of matters in that Bill. However, Scotland is not much affected by this Bill, and perhaps we should be grateful for that.
The Minister’s first remarks on the way in which the Government are thinking about releasing some of the controls on Wales were welcome. If that comes about, I think we would be very much in favour of it. On that basis, I beg leave to withdraw the amendment.
Baroness Hanham
My Lords, I will try to be a little more helpful. Part of the answer is that the Government believe that a local authority service should not make a surplus year on year. I think that that was one of the points raised earlier. By providing a power to charge for discretionary services, the Government’s aim is to encourage authorities to provide the sort of services that they would otherwise decide not to provide or improve at all because they cannot justify or afford providing them for free or improving them. I do not think that that actually answers the question, so I am going to write to the noble Lord before the next stage.
Lord Greaves
Before my noble friend responds, the crucial question that comes to mind is this: if the provision as it is in the Bill is passed, does it change the existing situation?
Lord Greaves
My Lords, I have Amendments 16 and 17 in this group and, because of the usual vagaries of grouping, I have two amendments in the next group which are either identical or of identical import to Amendments 22 and 23 in this group: Amendment 22 is effectively the same as my Amendment 21 in the next group and Amendment 23 is effectively my Amendment 25 in the next group. I shall therefore speak to the two amendments in this group and not to those two of my amendments when we get to the next group.
Amendments 16 and 17 relate to the process of consultation. Amendment 16 seeks to add a further category to the three categories already in the Bill, which at Clause 5(7) states:
“Before making an order under subsection (1), (2), (3) or (4) the Secretary of State must consult—such local authorities … such representatives of local government, and … such other persons (if any), as the Secretary of State considers appropriate”.
I seek to add to that the words,
“such persons who are representative of interests substantially affected by the proposal”.
Clause 5(7) currently requires the Secretary of State to consult local authorities, representatives of local government and such other persons, if any, as he considers appropriate. Amendment 16 would require the Secretary of State to consult the additional category I have stated.
It is important that the Secretary of State should be required to consult with those who could potentially lose the benefit of statutory protection, whatever it may be, before the provision in question is repealed or amended. The amendment closely reflects the consultation requirements in Section 13(1)(a) of the Legislative and Regulatory Reform Act 2006, on which it is based, and also Clause 10(1)(b) of the Public Bodies Bill of blessed memory. In both cases the requirement to consult representatives of those substantially affected is additional to the duty to consult such other persons as the Secretary of State considers appropriate. My question is: why the change in this Bill compared with, particularly, the Legislative and Regulatory Reform Act 2006?
Amendment 17 seeks to remove the words “if any”. Those words appear to have been added to this Bill when compared with the existing legislation on which it is based. In the spirit that the Bill is too long already, I offer to take out two little words. More seriously, what difference in meaning is created by the addition of these words when compared with the existing legislation? That is the kind of question you get from people like me who are suspicious that any change is for a reason and not on a whim.
The noble Lord, Lord Beecham, referred to his Amendments 22 and 23; as I have said, my Amendments 21 and 25 are of identical meaning. The noble Lord referred to the red tape challenge. The Government seem to have a knack for totally unnecessary major public relations disasters. It is a good idea to remove red tape when it is not necessary, but the huge scale and breadth of the Acts of Parliament and regulations which are being churned out, month by month, on the different areas of the red tape challenge are a recipe for many people becoming concerned, jumping up and down and mounting campaigns which one hopes will be largely unnecessary when the final result comes out.
Having made that comment, I shall devote attention to the amendments. Amendment 21 to Clause 6(2) sets out a number of conditions that have to be met before the Secretary of State can make an order under Clause 5(1). Amendment 22, as moved by the noble Lord, Lord Beecham, would add a further condition—
Baroness Hanham
To be a little bit pedantic, I am perfectly happy to answer those questions, but I think we are on the seventh group of amendments, with Amendments 12 to 17 to Clause 5, and Amendments 22 and 23. The noble Lord has just referred to Amendments 20 and 21, which I think come in the next group. It may be more convenient if they could be considered there.
Lord Greaves
I apologise. I shall explain it all again, because there is a mess-up in the groupings and it is best to discuss the questions under the amendments tabled by the noble Lord, Lord Beecham, rather than under mine that come later. I keep referring to mine because my notes obviously refer to them.
Lord Jenkin of Roding
If my noble friend objected to the grouping and thought that the amendments should have been put together differently, he had plenty of opportunity over the weekend to put that to the Government Whips. As it is, surely to goodness he must debate those amendments in the group in which they are listed on the amendment paper—otherwise it becomes extremely confusing.
Lord Greaves
I agree entirely, except that I did make changes to the grouping. As a result of this, we are where we are. I attempted to make sense of it, but in the end it did not come out that way. Let me be absolutely clear: I am talking to the two amendments in the group that starts with Amendment 12 as moved by the noble Lord, Lord Beecham. I apologise for the confusion in the numbers, which is entirely in my head and in my notes. I shall attempt to be much clearer.
I am talking now about Amendment 22, which is in the group that we are debating. The amendment, which was tabled by the noble Lord, Lord Beecham, and which I entirely support, reflects the analogous condition in Section 3(2)(a) of the Legislative and Regulatory Reform Act 2006. This additional safeguard is needed and is not covered by the other conditions—for example, the requirement for proportionality. The reason is that Clause 6(2)(a) refers to the proportionality of the “effect of the provision”, while Amendment 22 relates to the means of achieving that objective. The Secretary of State would have to be satisfied that the particular amendment or repeal proposed is the only way of satisfactorily securing the objective; it would require him to consider whether there were other possibilities—for example, by issuing guidance to local authorities or by amending or repealing a less significant provision. This is an extremely complicated matter. I do not know whether the Minister will be able to give us an answer that can satisfy us all, but again perhaps further discussion, either by letter or in person, can take place.
Amendment 23, which relates to the Human Rights Act and similar Acts, would add a further condition to Clause 6(2). Section 8 of the Legislative and Regulatory Reform Act 2006 makes a specific exception for the Human Rights Act. The Minister in the House of Commons stated that Clause 6(2)(e) would preclude the making of an order repealing the Human Rights Act or any part of it, but that paragraph relates to the provision—in other words, what the order proposes to do. This is different from whether the statutory provision itself, which is the subject of the order, is of “constitutional significance”. The point is that the 2006 Act recognises that distinction. The Bill as it stands does not recognise it and the question is why not. Why the change? The amendment of the noble Lord, Lord Beecham, would restore the distinction, which would be a very sensible thing to do.
Lord Newton of Braintree
My Lords, having already declared my wife as an interest, I will not repeat that. However, in view of the contents of Amendment 14, I should mention that I am in possession of a disabled person’s blue badge and that I chair a mental health trust.
I wanted to join in on this debate partly because of puzzlement and partly because I thought that the noble Lord, Lord Beecham, moved his amendments—in particular Amendment 14—with rather more diffidence than I had expected, and certainly with less vigour. By the time you have got through five of these clauses, your mind begins to glaze over, to be honest. However, as I read the provisions as a mere layman, what is being said here is that local authorities can do anything they like, subject to some broad qualifications, and the Secretary of State can allow them to do anything they like if he likes what they want to do; but if he does not like what they want to do, he can do whatever he likes to stop them—and all this with a limited piece of secondary legislation, possibly altering primary legislation, and on the basis of a negative resolution. I think that is it in plain English—I hope that it is, and I see some nods.
At the end of the Public Bodies Bill, I said that I thought that Henry VIII had suffered a major setback but not a terminal defeat and had gone off to regroup somewhere. Well, I now know where—it was in the Department for Communities and Local Government. Here is Henry VIII, on his charger, writ larger than ever before.
I have reservations about this, to put it mildly. The noble Lord, Lord Beecham, used a telling figure in the Second Reading debate, that there were over 1,200 pieces of legislation that could be amended by this Bill, using these powers. He has picked out some of them, and I think that he has done us a service, but I want to know the justification for this. If it is secondary legislation that is being changed, I can understand it, but if primary legislation, which has been duly and thoroughly debated and passed by Parliament, can be swept aside in this way, there is a real question about what we are all doing here. I note that safeguards have been written in, but I am not sure that they are on a parallel with the safeguards written into the Public Bodies Bill. At the very least, if the House is expected to acquiesce in these proposals, it needs at least a similar level of safeguard as we have in the Public Bodies Bill. I rest my case for the moment.
Baroness Hanham
My Lords, I hope that I said in my remarks that I understood what the recommendation was and that we would look at it further. It is almost inconceivable that a recommendation from that committee would be ignored.
Lord Greaves
My Lords, I shall comment briefly on the consultation amendments in my name, Amendments 16 and 17. The noble Baroness said that they would gold-plate the legislation. As I understand it, they would simply put this legislation on the same basis as the Legislative and Regulatory Reform Act and the Public Bodies Bill, which was in this House only recently. I am tempted to ask why those pieces of legislation were gold-plated. I hope that this might be looked at again.
The noble Baroness also said that adding a requirement for consultation with representatives of people who are likely to be affected could restrict the amount of consultation that took place, but as it would be an additional requirement—the requirements in the Bill would not be changed at all—and would include the words,
“such other persons that the Secretary of State considers appropriate”,
it is difficult to see how it would restrict anything. It would simply extend the amount of thought that the Secretary of State would have to give to exactly who is being consulted and provide a bit of guidance to him. The two arguments that the Minister has put forward seem a bit weak. When Hansard comes out tomorrow, I will read exactly what was said, but I think that it would be no skin off anybody’s back to accept the amendments.
Finally, I asked why the words “if any” had been added to the similar provisions in other legislation that this is based on. Perhaps the Minister will write to me and explain the significance of that.