Localism Bill
Lord Shutt of Greetland Excerpts(13 years, 5 months ago)
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Lord Best
Perhaps a word could be said from the Cross Benches, too. I have quite a lot of the amendments that might detain us further on. Although we must all accommodate whatever the usual channels decide, it is quite late notice for next Thursday suddenly to be removed from our diaries when we had every reason to expect to be on Recess at that time and had other plans. I, for one, would be letting down an awful lot of other people, which I may have to do if we have to sit next Thursday. If it is of any help—and I am sure that we all have our different preferences—I would be quite prepared to go into all hours of the night on Wednesday night and will try to remain fresh, if that is required of me.
Lord Shutt of Greetland
My Lords, I thank noble Lords for their contribution. It is not easy, because we had no idea of the exact time when the earlier Bill would conclude today. There were great expectations that there would be a serious amount of time to discuss localism today, but noble Lords in regulating themselves felt that it was important to consider the previous Bill. Those who have been observant will have seen that various noble Lords have been talking off the Floor of the House, as others have been talking on the Floor. If we could make a start on the Localism Bill now, even though there are only 22 minutes before seven o’clock, we could do one or two amendments. That would be sensible.
The usual channels can channel away a little longer and, I hope, make a statement before we conclude tonight. We do have it in our diaries to come here on Monday, Tuesday and Wednesday. The prospect has been put—
Lord Bassam of Brighton
It might be for the convenience of the House if we invite the government Chief Whip to make her statement now, because I think it would help us to draw proceedings to a close. I, as ever, wish to be helpful.
Localism Bill
Lord Shutt of Greetland Excerpts(13 years, 5 months ago)
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Baroness Hamwee
But do they read the plain English guide to the Localism Bill? That says, on the community right to challenge, that many local authorities,
“recognise the potential of social enterprises”.
I hope that my noble friend Lord Shutt of Greetland, who I think will respond to the debate, will be able to say a word about whether in the Government’s mind social enterprises are something different from community groups. Many social enterprises are in fact businesses. That is not a criticism, but they are very different from community groups. The application of these provisions to social enterprises is interesting. The guide refers to them providing,
“high-quality services at good value”,
and delivering services “with”—that is, with local authorities—“and through them”. I was interested in the “with”, which, in the legislation, finds its manifestation in,
“assisting in providing a relevant service”.
I do not know whether my noble friend is able at this stage—we may need to wait for the regulations, which I, like the noble Lord, Lord Greaves, hope to see before too long—to explain what that assistance might look like.
Lord Shutt of Greetland
My Lords, I thank those who have contributed to this series of amendments. We have a fresh start here, in that the community right to challenge will hand the initiative to voluntary and community bodies with good ideas about how services can be run better, and more cost-effectively, ensuring these ideas get a fair hearing, and will give them the time to organise themselves to bid to run these services.
In making my preparations for the day, I spotted the word “regulation” more than once. I thought the best thing to do is to take this head on. Much of the detail of how the community right to challenge will work is to be included in regulations. In response to amendments from noble Lords which touch on this detail, I will often have to explain that we are currently carefully considering issues that have been raised in our recent consultation. It is important that we get the details right. I would like to reassure noble Lords that, on various issues on which we have consulted, we propose to set out the way forward prior to the Report stage of the Bill. I am not promising, but if we can, we will see if we can get some draft regulations. That may not be possible in all cases but we will endeavour to do so.
I understand what my noble friend Lord Greaves said. I had not thought of “jolly wheeze” as featuring in his vocabulary. However, community organisations are part of the Liberal Democrats’ vocabulary. Therefore, this measure may have been suggested by one part of the coalition but I readily embrace it as a means of giving communities an opportunity to come forward with better ways of delivering local services. However, we need to see what is in the regulations, on which consultation is still taking place.
Lord Beecham
Will the noble Lord confirm that the Government accept the recommendations of the Delegated Powers Committee regarding regulations under this part of the Bill being subject to the affirmative procedure?
Lord Shutt of Greetland
My Lords, the Government are considering those recommendations. I will not make any promises on that but I believe that they are very likely to take serious account of the committee’s views. It would be very unusual if they did not.
Amendment 129V would remove the Secretary of State’s powers to specify requirements for expressions of interest in regulations. We have taken this power to ensure that power really is pushed down into the hands of communities. The majority of relevant authorities will act within the spirit of the right but this power would prevent a recalcitrant authority requiring an unnecessarily burdensome amount of information that would stymie a relevant body wishing to use the right.
Amendment 130ZB would remove the Secretary of State’s power to exempt services from challenge. Taken with Amendment 133ZK, which would remove the power for the Secretary of State to specify the grounds for rejecting an expression of interest, which we will consider later, this amendment would give relevant authorities discretion to reject a challenge to any of their services. As I have already explained, we have taken these powers to ensure that power really is pushed down into the hands of communities. The majority of relevant authorities will act within the spirit of the right, but this power would prevent a recalcitrant authority rejecting expressions of interest out of hand.
Amendments 130ZA, 131ZA, 131G, 131H, 131E, 131F and 131DA would remove the Secretary of State’s powers to make changes to the right in regulations. Amendments 130ZA and 131ZA would remove the power to add relevant authorities and bodies. Amendments 131E and 131F concern the power to amend the definition of a relevant body and voluntary and community bodies. Amendments 131G and 131H concern the power to make any amendments to this chapter of the Bill that are necessary as a consequence of adding relevant bodies and authorities, including making changes to regulation-making powers. Amendment 131DA would remove Clause 68(9), which contains many of these powers.
We have taken these powers to enable us to keep pace with change and appetite for extension of the right. For example, the powers to add, amend and repeal relevant bodies and amend the definitions of voluntary and community bodies enable us to ensure that these definitions continue to reflect the types of organisation representing communities.
Amendment 130ZBA would require the Secretary of State to consult representatives of relevant authorities and other public bodies affected by an extension of the right. We have recently concluded a consultation on our proposals to use the various powers with all those with an interest in the right and we will consider the need for consultation on future changes. Before extending the right, we would need to have detailed discussions with key interested parties, in particular to understand whether additional services might need to be excluded from the challenge.
I should respond to the noble Baroness, Lady Hamwee, who mentioned one type of social enterprise. I have certainly seen in my life numerous names representing organisations that are not a sole trader or public limited company but which have some social, community, environmental or other involvement. It seems that it does not stop. I think that the important thing is that other forms of enterprise might appear but that we are yet to hear from. The way that the script is written covers anything that might happen in the future. In those circumstances, I trust that the amendments will not be pressed.
Baroness Hamwee
Before my noble friend responds, I wonder if I may just say a word about that last point on social enterprises. A community body is defined in Clause 68(8) as a body carrying on activities,
“primarily for the benefit of the community”.
No one would quarrel with that, but the distinction between a community and a voluntary body as defined, is a reference—or, in the case of a community body, lack of reference—to profit, to it not being carried on for profit, or to what happens to the profit. Reading the words,
“primarily for the benefit of the community”,
I wondered whether that was to be read as including how profit is dealt with, whether it is to be ploughed back for the benefit of the community. Perhaps this is another matter for regulations. However, the distinction might be relevant in giving us a flavour of how the Government expect this new arrangement to work. Maybe it is a question of letting 1,000 flowers bloom, and so on.
Lord Shutt of Greetland
Letting many flowers bloom is the position. Clause 68(5) refers to a “voluntary or community body”, and the noble Baroness has mentioned the differences there; to a body “established for charitable purposes”; to the parish council; and then to “two or more employees”, and “more” could be considerably more. How that “more” then establishes itself is another way forward. There are clearly two features here: the elements of “voluntary”, “community” or “charitable”; and the way in which employees choose to organise themselves. They are lumped together, but in many minds—in my mind at any rate—they are two distinct ways forward.
Lord Beecham
The noble Lord may recall that I have an amendment dealing with precisely that matter, which we will discuss later.
Lord Greaves
My noble friends Lady Hamwee and the Minister are straying on to matters covered by future amendments. I remind my noble friend that she might have suggested some of those amendments. As for the idea that this is all about letting 1,000 flowers bloom, I invite my noble friend the Minister to come on over the tops and have a look at Colne at the moment. It is in an absolutely beautiful condition thanks to Colne in Bloom. There is a massive display of flowers; far more than 1,000. On the other hand, letting 1,000 flowers bloom did not do much good for Mao Tse-Tung. It has different connotations.
The Minister referred to recent consultations. Can he give us an assurance that the Government will publish a pretty full account of the results of those consultations and the evidence that they got? Will it be possible to access them?
Lord Shutt of Greetland
I do not have it to hand, but I am pretty certain that they are to be published on 2 August. I think that that is the statutory date when the results of the consultation must be published so that people know what people have had to say, so that will be done.
Lord Shutt of Greetland
That formal consultation has now finished, but I am pretty certain that, bearing in mind that this is still going through your Lordships' House, other views will still be taken into account—but not in the formal consultation.
Lord Patel of Bradford
My Lords, as has already been explained, Clause 68 concerns the duty placed on relevant authorities to consider an expression of interest. It is a very important clause, as it provides the foundation for the community right to challenge process. The duty sets out the definitions of relevant authorities and bodies, definitions that we have already discussed and that we shall debate further in two or three later amendments. It also sets out the terms by which an authority must consider an expression of interest. That is the part that the amendment would strengthen.
Think for a moment about the meaning of this chapter, and indeed the thrust of the Bill: it is about the central role and importance of local communities in determining the ways in which services are provided. When we talk about communities, whether we use the terms, “community organisation”, “body” or “group”, we must be very careful about what we mean. There is always a risk that we assume that a particular community group, voluntary body or even a local authority understands all the communities that use services or represents them. Clearly, we cannot have a situation in which any individual or group can challenge the provision of a particular service and have a right for their expression of interest to be considered. We must also guard against the interest being too narrow. When considering services it is only right that the views of those who use the services should also be considered in any challenge. It is, after all, the service users who will be most affected by changes made as a result of the challenge.
I have worked for many years with a great number of service users from the full range of health and social care environments, including those with mental health problems, alcohol and drug addictions, those involved in the criminal justice system, and with people of all ages, including the very young and older people. My experience consistently is that service users are not only very willing and keen but very capable of saying what they think about services and how they would like to see them improved. I would like to think that among the reasons a local authority would accept a community right to challenge and go through a procurement process for the service is because they want to see improvements. I cannot think of a better way of doing this than by ensuring that service users are involved in the process.
Of course, we have then to consider how many service users should be involved. What is the optimum number? What might the minimum number be? I have no easy answers, but I am sure that other noble Lords will want to express a view on this. It seems to me that the number should be substantial, given the profound impact that any change in provider could have on those using the service. This approach gives credence to service users as a body of people whose views must be considered. It also places a duty on those wishing to lay an expression of interest to make sure that they have adequately consulted the service users, or are at least in a position to do so. I would argue that there is also protection in taking that approach. By ensuring that the views of those most affected by any proposed change are taken into account, we can avoid the situation in which potential bodies seeking to challenge the current provision are not doing so solely in their own interests.
I hope that the Minister will be willing to consider this amendment and that he can give me some strong reassurance on what steps will be taken to ensure that the views of those using services are taken fully into account. I beg to move.
Lord True: My Lords, I have some sympathy, of course, for the direction that the noble Lord is coming from, but he himself touched on important questions of practicality. There are a lot of questions of practicality in these clauses. Many local authorities are in the process of seeking to set up charitable trusts, social enterprises, and other organisations such as those that were referred to in Clause 5. I am not quite sure how the views of the service users would be established by those wishing to make a challenge or put forward an expression of interest. If there were a small social enterprise to be formed from among a group of local authority workers out of their interest in sustaining high-quality services, it would be proposed that they have focus groups, referendums or other means to establish the reaction of service users. Although well intentioned, the amendment might actually put obstacles in the way of local authority workers establishing social enterprises or bodies.
I am a little nervous about the direction in which the amendment would take us. Clause 70 contains rules for local authorities and how they should consider expressions of interest; there are duties laid upon local authorities to take into account how any expression of interest would promote the well-being of people in the local authority area. So although I understand where the noble Lord is coming from, this may add an extra complication to an already complicated piece of legislation, and I could not support the amendment.
Lord Shutt of Greetland
My Lords, this is the other side of the coin in terms of whether one is being too prescriptive. This amendment would require a relevant body to demonstrate that a substantial number of service users support its proposal when submitting an expression of interest. This puts an unnecessary burden on relevant bodies, and the relevant authority if it must verify the information. Where more than one relevant body submits an expression of interest, service users could be approached several times, which may be frustrating and confusing. This will be magnified by the fact that local people will use many different services. We agree that expressions of interest should reflect the needs of service users. Relevant bodies will often have excellent insight into these needs. The Bill enables relevant authorities to specify periods for the submission of expressions of interest in particular services. They could, for example, set periods that would enable relevant bodies to take into account the results of any consultation with service users, undertaken as part of the commissioning cycle. We are considering how service-user needs might be reflected in the requirements for an expression of interest. I hope, under these circumstances, that the Minister will feel it appropriate not to press the amendment.
Lord Greaves
The Minister said that more than one relevant body might submit an expression of interest in a particular service at any given time. I am trying to think of an example. Two community groups might be interested in taking over a particular park. They might be at daggers drawn and they will not want to put in a joint bid. How does the authority decide between those two community groups? I am trying to avoid using words like “relevant bodies”. Anybody out there listening to this discussion will not have the slightest clue what we mean by “relevant authorities”, “relevant bodies” and “relevant services”. But if two community groups want to run the same park—for example, because it is on the border of two quite different areas—how does the council decide which one to deal with?
Lord Shutt of Greetland
My Lords, the council concerned will have its own procedures for dealing with these things, but the chances are that one submission will be better than the other. If they are bang on equal, it might come down to price, but councils have their own decision-making ways. If the submissions are almost identical, councils will just have to look at them with great care. But it would be strange if they were identical. One could look at what lies behind the application, the strength of the body, whether it looks sustainable and whether the committee of the organisation looks as if it is there for the long haul. I am quite certain that these are all things the authority will be looking at.
Lord Beecham
Can the Minister indicate that on this topic, at least, there will not be regulations from the Government?
Lord Shutt of Greetland
The noble Lord is asking, in effect, to put a regulation into the Bill. The government line is that we do not need it in the Bill and therefore this is regulation-free.
Lord Greaves
To go back to the question I asked, the answer my noble friend gave is probably OK if the two applications come in at the same time or within the same council cycle so that they can be discussed by whatever procedures a particular council has to deal with these matters. But does the Bill not say that once an application has been accepted and is being considered, no more applications for the same thing can be made and accepted? Therefore, if one came in today and the other came in a couple of months later, perhaps in response to the knowledge that the first one had gone in, it could not be accepted. How would that be dealt with?
Lord Shutt of Greetland
I shall have to come back to the noble Lord on that. There two ways in which these expressions can be made: one is that once we have an Act of Parliament, people can, as it were, just pitch; and the other is by authorities saying, “We are looking at various things and this is the starting date and this is the finishing date, when we look forward to people making expressions of interest”. If it were the latter, it would be quite clear when expressions of interest could be made. If people were just making a pitch, an authority might look at that and be surprised that something else turned up later.
Lord Patel of Bradford
The Minister said that the best that he could offer was to put this into regulations. That is obviously welcome. However, I am disappointed. The noble Lord clarified the problem of practicality for me. I have worked in health and social care for about 20 years and every service that is delivered will never say that it will never engage with service users. Everyone is very happy to say, “Yes, we will engage with service users”, but they do not do it, simply because they think that practically they cannot manage it, that they will not get any benefit from it, and that they will talk to too many service users and confuse them. Using the words of the noble Lord, Lord Greaves, this is utter nonsense.
You can engage with service users, and there was huge appetite for that. I can give noble Lords example after example of people with mental health problems having impacted on social policy and on the policy of the organisation and teaching professionals how they should inspect services. What matters is how we do that and the value that we give it. Perhaps I can give one example. Over the past 18 months, I have chaired a review group on the effectiveness of drug treatment in prison. We looked at the huge amount of money that we spend on drug treatment in prison, which is a very difficult environment. We brought together 20 experts: governors, a chief probation officer, experts in the drugs area and academics. Everyone came round the table to explore a strategy for commissioning and producing outcomes. We spent 18 months meeting, arguing and fighting.
One thing on which I insisted was talking to service users, offenders, people currently in prison, ex-offenders and their families. We were not given a budget for it because they said, “It is not practical. No offender or ex-drug user will engage with the process, but have a go”. On a shoestring budget and in the space of six weeks, we engaged user groups across the country and asked them to talk to offenders, users, carers and families. We anticipated that at most 50 people would respond, but in those six weeks 550 current and ex-offenders and drug users responded.
Ultimately, the views of those drug users affected the way in which the final report—the Patel report—was written. They underpinned everything that happened. This effected the best evidence base ever gathered on drug treatment in prisons. They mirrored what that evidence base said and highlighted what drug users want and how they want it. With their evidence and their views, we produced an outcomes model. That would not have happened unless we had engaged with the so-called most difficult, hard to reach groups. People have a huge appetite to be involved. It does not matter whether two or three groups want to consult with service users; they should, because while they are consulting them and asking them what they want, they might learn something about what they should be doing and how they should be delivering their service.
It is crucial that this provision—that you cannot deliver a service without engaging service users—is in the Bill. I am sure that in his heart of hearts the Minister believes that. It is an important thing to do. My anxiety about not putting that into the Bill is that services will not do it; it will be an excuse not to do it. You have to force them to do it because it delivers goods. I will go away and think about this, and I would appreciate it if the Minister thought more about it and talked to his officials to see whether there is any way in which we could strengthen the provisions of the Bill that push those heading the new services to talk to service users. It might not have to be a substantial number, or whatever the legal phrase is, but this should happen because it is fundamental to the issue of the community’s right to challenge. The Minister himself said that this was about handing power to the community. Service users are a key aspect of the community, so we have to push this.
Lord Shutt of Greetland
My Lords, I am holding the line with the Bill. Anyone who thinks about challenging must put together all sorts of things to prove the viability of their outfit and the people involved. If they have any wit, they will say that they believe that they can do it and will have done some work in order to prove that they are up to the job. If the noble Lord were a consultant to people wanting to put forward a proposal, that is the sort of thing that he would urge them and everyone else to do.
Lord Patel of Bradford
Absolutely—if I was a consultant, it would be done. Unfortunately, however, there are not many folk like me about. We can discuss rates later. I take on board what the Minister said. I will think about it further and I would appreciate it if the Minister, too, would think further about whether we can strengthen this. I am sure that the issue will come back when we consider further aspects of the Bill. In the mean time, I beg leave to withdraw the amendment.
Lord Patel of Bradford
My Lords, I shall be very brief. I have listened carefully to what the noble Lord, Lord Jenkin of Roding, said, and I have read his amendment carefully. The basic principle of the proposal is exciting and warrants further investigation and explanation, although I agree that a list would be completely bureaucratic. As for the idea that we could take this a step further, I am excited by the community right to challenge aspect but would want to be assured that the amendments would not in any way, shape or form dilute the local community right to challenge.
Lord Shutt of Greetland
My Lords, I thank the noble Lords who have introduced these amendments. I wonder if I may deal first, out of sequence, with Amendment 132. This amendment would require local authorities to publish and maintain charitable services provided by all relevant authorities in their area. The Government are already asking local authorities to publish important information about services, and the Bill already enables relevant authorities to specify periods during which expressions of interest can be submitted for particular services, and requires them to publish details of these. This amendment would put additional administrative requirements on local authorities and falls into the trap of over-engineering the right, something which the Local Government Association has warned against.
Amendment 130 would change the definition of a relevant authority to extend community right to challenge to any public body. Amendments 131 and 130ZC propose changes to the definition of “relevant body” that would enable local authorities to challenge other relevant authorities, specifically government departments, agencies and non-departmental public bodies, under Amendment 131, and county councils, where the relevant body is a district council in a two-tier area, under Amendment 130ZC. The Bill already enables the Secretary of State to extend the right to other public bodies in regulations—back to our friend. Our recent consultation sought views on which other public bodies the right should be extended to. Many respondents said they felt that it should be extended to all public bodies. It was also suggested that local authorities should be able to challenge other types of relevant authority. Given this appetite, the Government are keen to explore the idea of extending the right to other public bodies. However, many of those respondents also felt that we should not rush into extending the right before evaluating its impact in its current form. Before extending the right, we would need to have detailed discussions with key interested parties, in particular to understand whether additional services might need to be excluded.
My noble friend Lord Jenkin usefully gave us various examples. I would just say that the examples are such that other Ministers and departments would have to get thoroughly involved and, by jingo, there would have to be some joined-up government in all this. I warm to the theme that it is exciting. I am just wondering whether it is too exciting for this Bill at the present time.
Lord Shutt of Greetland
My Lords, there is rather a lot here and I thank noble Lords who have taken part. Before I come to my notes, Clause 68(5) refers to voluntary and committee bodies and they can be defined. It might not be absolute but they can be defined in some way or another. When the subsection says,
“a body of persons or a trust which is established for charitable purposes”,
it does not say there about the community. That can be national. It then says, “a parish council”, which is clearly local, and,
“in relation to a relevant authority, two or more employees”,
which might just be a partnership if it is two. If it is more, it can be any form of enterprise that was thought of. I am aware of the theology that exists in the different forms of co-operatives and so forth. There can be all sorts and then there is the catch-all in our friend, “regulations”.
Let us see how we can cope with the notes that have been made on specific amendments. Amendment 131A and 131C would require the voluntary and committee bodies to have some local connection, whether operating primarily in or for the benefit of the community in the relevant authority area, or working with a body that does. We are keen to encourage local and national bodies to work together to submit expressions of interest and bid for any subsequent procurement exercises, but many national organisations do excellent work locally in their own right—particularly for communities of interest, which may not always be well supported by a local group. We would not, for example, want to prevent the Alzheimer’s Society expressing an interest in running a relevant authority service. It is difficult to argue that it would not represent the interests of vulnerable, elderly people in a local area. These amendments could also prevent voluntary and community bodies that are successfully implementing innovations in service delivery from replicating their approach elsewhere.
Amendments 131AA and 131B propose different requirements around a voluntary body’s surplus. Amendment 131B would require that surpluses should be used for the “benefit of”, as opposed to being for the “purposes of those activities”,
“or invested in the community”.
Amendment 131AA would require that any surplus was,
“required to be and used”,
as opposed to simply being “used”,
“for the purposes of those activities or invested in the community”.
Amendment 131ZB would enable the Secretary of State to add “category of bodies” as a relevant body rather than “person or body”. I am not clear what material difference these amendments may make.
Baroness Thornton
Perhaps I may help the Minister with this because the point about my noble friend’s Amendment 131AA is that where a voluntary body generates a surplus, it can be legitimately used for several purposes. It can be used to undertake further activities consistent with the social aims, as set out in its governing document, which could include but not be restricted to local community benefits. It could be used to invest in strengthening the organisation itself, so that it becomes more resilient and can expand its work, and it can be used to repay loans and other investment. It might, for example, include a payment of dividends to shareholders following a community share issue within the limits established by the incorporation of the community interest company or the IPS. Those are safeguards against excessive private gain. I do not think this is the right amendment but the point is that it seeks to clarify whether points two and three are permitted within the Bill. We might need to discuss this further.
Lord Shutt of Greetland
I am even more confused but I will endeavour to look at that in due course. As I was saying, the Bill already states that a voluntary body’s activities should not be carried on for profit. The purpose of a voluntary body’s activities should surely be to benefit the particular community it represents. As for what the noble Baroness has said, we are in Committee and we can clearly look at this again, but I saw this in simple terms. I cannot get it out of my head, quite frankly, that you may get a community association bidding which, in its building, has a kitchen where it will do its meals on wheels. It might make a bit of a profit from the meals on wheels service in that community. It seems to me that if it makes a small profit from that exercise, it can use that for the benefit of the rest of the association that it is carrying on in that building. That is as I see it in simple terms.
Amendment 130A would require employees of a relevant authority to set up a charity, community interest company or industrial and provident society in order to submit an expression of interest. Requiring employees to form a specified organisation in order to submit an expression of interest and get a fair hearing for their idea would create an unnecessary and bureaucratic burden. It risks putting employees off exercising the right altogether. The Government are committed to giving public sector workers the right to bid to take over services that they deliver, and the community right to challenge implements this commitment for relevant authority employees.
Baroness Thornton
I am sorry for interrupting the Minister again but this is a very important point. I can cite two examples. Sunderland Home Care was set up by home care workers as a co-operative and, quite rightly, the employees of that local authority in Sunderland provided much better terms and conditions to contract with Sunderland Council. Greenwich Leisure started the whole movement of leisure trusts because Greenwich Council was going to close down its swimming pools— this was 10 or 12 years ago—due to something called rate-capping, which some of your Lordships may remember, and it was the employees who initiated the move to contract with the local authority to take over all the leisure services.
Those examples both make a surplus—and quite right too—because that is how they reinvest back into their local communities, so that the charges in Greenwich for leisure services are now much lower proportionately than they were. They are also both able to support contracting in other areas, so that Sunderland Home Care now provides training for home care workers across the north-east. The point about this amendment is that by defining the legal form that community groups, or any group of employees, use to do the challenging, we actually safeguard the social purpose against private profit being made which then does not get put back into the community.
Lord Shutt of Greetland
My Lords, I understand what the noble Baroness is saying, but there is a concern about being overprescriptive. It is important that we do not do anything to put employees off. We can return to this; there is no reason why not; but we know what the intention is. It is to free up the opportunity for employees to take part in a right to challenge. I am far from certain that we should be prescribing that there are these various routes and it is outside the theology if they take the fifth route and not routes one to four. We need to be a bit careful about that.
Lord Greaves
If there are not to be clear structures which are recognised as appropriate, how do you prevent the situation in which two employees make a right to challenge when they have absolutely no support from the rest of the employees, but because they have made the right to challenge, the process has to take place?
Lord Beecham
Before the noble Lord replies, may I point out that I have an amendment dealing with precisely that matter as well?
Lord Shutt of Greetland
I am quite clear that, if there are two employees, we are back to the whole business about looking at who is backing this and whether the people who will ultimately benefit from this service think that it is a good idea. It is unlikely that the local authority would say, “Off you go; you look a great pair”. It is very doubtful that that would be the case. That is the route to putting a stop to that. It may well be that our friend, regulations, will come into this as to the power of stoppage that there would be in these circumstances.
Amendment 133ZN would prevent the Secretary of State providing advice and assistance in using the right to a body that is formed of, or includes, any employees or ex-employees. That would introduce a disparity. It would mean that advice and assistance could not be provided to a voluntary and community body formed of employees and ex-employees, but could be provided to other voluntary and community bodies that did not contain such individuals. No decisions have been made on the form of any advice and assistance in using the right, but we expect to focus on those that need it most. This is likely to mean smaller, newer voluntary bodies, but it is sensible that we have the powers to provide assistance to any relevant body that might need it. I understand that an impact assessment has been done on this and the suggestion is that, across the country, £20 million will be required. It is not yet in any budget, but that is the suggestion in the impact assessment.
Clause 73(4) ensures that this includes employees who have formed a body to take on the delivery of a service, including where they have left the employment of the authority. This supports the Government’s commitment to give public sector workers the right to bid to take over the running of the service that they deliver. I trust that these comments will mean that these amendments are not pressed at the present time.
Baroness Thornton
I rather expected that the noble Lord, Lord Greaves, would be doing the heavy lifting at this point in the debate. I thank the Minister. We need to have further discussions about this to make sure that we are safeguarding things. I say to the noble Lord, Lord Newton, that definitions are not a problem here, because we are seeking to create a variety of different ways for local organisations and groups to set up social businesses which will be able to contract for services. The way that they will define themselves is by choosing a legal framework which fulfils the purpose as outlined in the Bill. There are only a few things that they could choose: a company with charitable purposes; a community interest company or an IPS, a co-operative of a different sort. There is a limited number. They define themselves, in a way. It looks complex, because there are lots of different ways of doing this and, in fact, the Government’s role in providing information support at local level will be very important. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I wish to ask one question, which has occurred to me only while listening to the debate—otherwise, it would have been down as an amendment. Does clause 73 extend to the Secretary of State giving directions to a local authority to provide financial assistance in this connection? The Minister can take it as my view that it should not.
Lord Shutt of Greetland
My Lords, Amendment 131D seeks to confirm that bodies which carry out activities for profit cannot be relevant bodies. Amendment 133ZP would prevent bodies which are carrying out profit-making activities from receiving advice and assistance in using the right to challenge.
The definitions of voluntary and community body have been designed to enable a range of civil society organisations to use the right. This supports the Government’s commitment to enable these groups to have greater involvement in running public services. This includes social enterprises and co-operatives, where not all profits may be reinvested in their activities or the community provided that their activities are for the benefit of the community. This requirement will ensure that any profits are indirectly focused on their activities. It will also ensure that large, multinational companies and big conglomerates cannot use the right to challenge. I am aware that that is a concern.
No decision has been made yet on the form that any assistance will take, but one would expect it to focus on those who need it most. This is most likely to mean smaller, newer voluntary and community bodies; but it is sensible that we have the powers to provide assistance to any relevant body that might need it. In answer the noble Lord, Lord Greaves, when I referred to the “power of stoppage”, that was my own phrase. I think that we have to look at regulations because it is not clear to me yet exactly how a local authority will cope when it encounters the whole business of people taking advantage of the right to challenge—whether it can just say “buzz off”, or whether, in the regulations, it cannot say “buzz off” unreasonably. I believe that this is something that has to be worked through in regulations. He referred to the figure of £156,000; that is the threshold figure in terms of the Public Contracts Regulations 2006. However, as well as the £156,000 threshold figure, there is a list of services in Part B of Schedule 3 to those regulations which is quite lengthy, to which that figure is not relevant. This includes education, health and so forth. There are a large number of things which would fall outside that.
It is important to understand that there is nothing in the Localism Bill which addresses procurement. Procurement is up to local authorities. Local authorities have worked out how they do that.
Baroness Thornton
I do not understand, then, why Clause 73(1)(b) talks about,
“participation in a procurement exercise”.
Lord Shutt of Greetland
That would be the exercise that is carried out by the local authority. It does not say how the authority should procure, it simply acknowledges that there will be a procurement exercise. I understand that these are wide-ranging powers, and I understand the noble Lord expressing his view on that. I think, however, that there are two quick responses—and the noble Baroness, Lady Thornton, will no doubt warm to this theme. It could well be that if employees are expressing an interest, under these clauses, provision could be made—and that may indeed be via a local authority rather than the Secretary of State—to give them help and assistance in forming a community interest company. That sort of advice and assistance, and seed-corn money, might enable such groups of employees to enter into expressions of interest. If they did not have that, they would be unable to.
Baroness Thornton
The noble Lord invites me to comment on this. My comment is that it is not the Secretary of State’s job to provide this advice and assistance. It is the local authority’s job, or else that of some association which is under its control. It is the Government’s job to provide the resources for them to do it. This gives too much power to the Secretary of State.
Lord Shutt of Greetland
The noble Baroness takes words out of my mouth. I did indeed say that that is exactly what could happen. I hope that, in the circumstances, these amendments will not be pressed, and that the clause will be able to stay. As I indicated right at the start, regulations are with us, and we will all need to see that we are happy with them. The noble Lord, Lord Greaves, said that he wanted convincing before the Bill leaves this House. It will be a while yet before it leaves.
Lord Patel of Bradford
Can the Minister give the House an idea of when the draft regulations on this clause will be laid?
Lord Shutt of Greetland
All I can do is repeat what I said at the beginning. Before we return to this, we shall either have draft regulations, or we will have an indication of where we are going. I cannot do more than that. I suspect that there is some work to be done on this, although some work is being done as we are going on. We have only just got the response to the consultation. Every endeavour will be made, because obviously it will assist their Lordships if this information is available.
Lord Patel of Bradford
I think that the wording we are discussing is almost duplicated in Clause 88, which will be opposed by the noble Lords, Lord Greaves and Lord Tope, so it is worth taking a second look at the extent of these powers. I am not entirely convinced that we have cracked this nut as lots of issues have not been debated fully.
Lord Newton of Braintree
I hope that I may hop in before the noble Lord, Lord Greaves, sums up, because I have been left in a state of confusion—as, I suspect, has the opposition Front Bench. I understand the point that this provision is not intended to let in large, multinational companies. We probably would not want to do that and in any case it seems to me that the number of large, multinational companies that would want to bid for small, local contracts worth less than £150,000 would be rather small. However, I am not clear whether it is the intention to do what this amendment appears to do, which is to ban even a small profit-making organisation. If that is the case, I am not sure that it is justified. If we consider meals on wheels provision, small catering companies provide sandwiches for local businesses and possibly meals for local old people’s welfare clubs. I do not see why they should be barred simply because they are making a profit, if they can provide a better value service than the organisations we are talking about here. I should like to know what the answer is to that.
Lord Shutt of Greetland
The quick response is that the community has the right to challenge. It is in the Bill—although I cannot turn to the relevant clause quickly—and was certainly in the consultation document, that there may well be circumstances where the community goes into partnership. Going back to meals on wheels, you could have the local community centre going into partnership with the local baker. Those sorts of things could happen, but the community has the right to challenge, not local businesses or conglomerates.
Lord Newton of Braintree
Can I be absolutely clear about that? I am sorry; I am becoming as talkative as the noble Baroness. I do not apologise for that as I think she is doing rather well. If a profit-making company were involved with a community body, would that be all right, even though it was making a profit?
Lord Shutt of Greetland
My Lords, it is my understanding that the community body could have as a partner another body that happened to be a profit-making body.
Baroness Hamwee
My Lords, I am relieved to hear the Minister say that, as the noble Lord, Lord Newton, seemed to be referring to competitive tendering, which we have experienced in different forms over the years. I want to pick up on a point that my noble friend made earlier. This is an observation rather than a question. The Minister said that the assistance would be given to whichever organisations needed it. I hope that the regulations will be written with a view to benefiting the community rather than the provider of the service. Those two things may be the same in the long run, but the benefit to the community should be the lens, as it were, through which one looks at the arrangements.
Lord Shutt of Greetland
My Lords, I understand the point that the noble Baroness is making. I will bear it in mind and take it back to the department.
Lord Greaves
My Lords, I thought that this group might lead to an interesting discussion. We have had an interesting discussion, which I do not think can end today. I have the sense that of all the groups we have discussed so far, this is the one on which my noble friend the Minister has batted on something of a sticky wicket. However, like a good Yorkshireman, he has rightly batted with a straight bat. There have been a few Bradfordians in the Committee today. The noble Baroness, Lady Eaton, has just gone but there are still a few of us left. The Minister does not quite qualify as a Bradfordian by a couple of miles, but he is still using a straight bat.
There are two fundamental issues in this group. One was raised by the noble Lord, Lord Patel of Bradford. The question of how this money is going to be handed out, to whom and what criteria will apply is very important. As we are all Bradfordians, I shall talk about Leeds. If there is an agreement between Leeds council and a big community-based group which would like to take over a lot of community-based services, and that happens, it seems to me very appropriate for government money to be used to assist that process. The process will proceed on the basis of co-operation and people agreeing that a particular group requires help and assistance to build up its capacity. However, if the money is handed out to large national organisations, whether they be charities or other bodies, in order to make speculative challenges or to come in after the challenge phase as part of the procurement for large-scale services such as children’s services or adult care services in large authorities, that would seem to me a less desirable use of the money. If it is to be used in relatively small or medium-sized amounts to bolster local community-based groups, that seems to me a good use of government money. However, I have problems with this provision being part and parcel of large national organisations taking over local services. That is the kind of thing that we shall have to probe further.
However, the fundamental issue in my amendments has not been confronted. My noble friend the Minister stated clearly that large commercial organisations, multinationals or others, will not be able to take part in the community right to challenge and will not be able to make expressions of interest. We all understand that but the problem arises at a later stage if it is a challenge for a service that costs £1 million a year to run and therefore has to be put out to a tendering process. As far as I can see, that would be very like the competitive tendering processes which used to be compulsory, and which some councils still carry out in order to get the best value because that is the way they want to do it. If that is to happen on a compulsory basis as a result of what was initially a community right to challenge, a problem will arise. Procurement does not appear in the Bill. I have been looking at where it might appear. Clause 72 is headed “Supplementary”. Clause 72(1) states:
“The Secretary of State may by regulations make further provision about the consideration by a relevant authority of an expression of interest submitted by a relevant body”.
That seems to allow the Secretary of State to make any regulations he wants about the whole procurement process. Clause 72(2) states that a relevant authority must,
“have regard to guidance issued by the Secretary of State”,
which, as we know, comprises instructions and does not even come to this place for us to nod it through. There are real issues here about the procurement process. If it is to be not in the Bill but in the regulations, the procurement regulations—if there are to be any—have to be among the regulations that the Minister manages to dredge out of the department before we get to Report. On that basis, I beg leave to withdraw the amendment.
Lord Greaves
This amendment is the first in a group of four amendments. In moving it, I will also speak to the three others. It is a miscellaneous group of different things that I put together to avoid getting leant on by the Whips. I think I can deal with these fairly quickly.
Amendment 131J is about how to deal with services provided by more than one authority jointly. The two adjoining authorities might be a district and a county in a two-tier system. I have a number of examples of that; I do not think I need to read them all out, but they include leisure facilities. Amendment 131K is about how the Government are going to review what is going on. This is an all new, untried and untested system that, we assume, will be brought into operation across the whole country at the same time, and the amendment is about how the Government are going to have a continuous review of what is going on, and continuous consultation with local authorities on how it is happening.
Amendment 133ZK provides more regulations and restrictions. It is about the rejection of an expression of interest. It seems to me that there are two stages at which things can be rejected. One stage is where the expression of interest is made and the authority can simply say, “We are rejecting the expression of interest and are going no further”. At the moment, Clause 70(8) says:
“The relevant authority may reject the expression of interest only on one or more grounds specified by the Secretary of State by regulations.”
That is crucial. Again, it would help if we could know what those regulations are; they ought to be in the Bill. The second stage is procurement, which we have been talking about.
Amendment 133ZL is a provision by which the relevant authority, the council, can carry on as before with the exercise, even if the relevant body—the community body or the parish council—withdraws its expression of interest or refuses to agree to modify the expression of interest. It is an indication yet again that once the process has started, it will continue and be very difficult to stop. That is, I think, of concern to some of us. We can see a situation in which a community organisation as defined is persuaded to put in its expression of interest. It is not really interested at all, but it gets the process going and is in league with one of the big boys, a big commercial organisation, which, if the figure is over £156,000, will then come in and try to clean up. There are real concerns that there are loopholes here that need looking at before the system is unleashed. I beg to move.
Lord Shutt of Greetland
Amendment 133ZK would remove the Secretary of State’s power to specify in regulations the grounds for rejecting an expression of interest. We have taken this power to ensure that power really is pushed down into the hands of communities. The majority of relevant authorities will of course act within the spirit of the right, but the power to specify the grounds on which an expression of interest could be rejected prevents a recalcitrant authority from rejecting it out of hand and defeating the purpose of the right. I accept that, as my noble friend indicates, we are back to regulations.
Amendment 131J would give a Secretary of State a power to make provision in relation to services that are provided jointly by authorities in regulations. We would expect relevant authorities to take a common-sense approach to services that are provided jointly, and to agree together a period during which expressions of interest could be submitted and arrangements made for considering them and for carrying out any subsequent procurement exercise. However, provision in relation to jointly provided services can already be made if necessary under the powers in Clause 72.
Amendment 131K would require the Secretary of State to consult representatives of relevant authorities when making regulations of guidance, and to have regard to their views. We have recently concluded a consultation, with all those with an interest in the right, on our proposals to use the various powers that we have taken. We will consider the need for consultation on future changes.
Amendment 133ZL would remove the authority under this chapter for a relevant authority to undertake a procurement exercise when an expression of interest has been withdrawn or a relevant body does not agree to modifications to it proposed by a relevant authority, meaning that it has to be rejected rather than accepted. An authority might wish to carry out a procurement exercise in these situations if, for example, it is attractive to the type of service delivery set out in the expression of interest and if the authority wants to initiate a procurement exercise anyway, or if services are currently contracted out and the company needs to undertake a procurement exercise in order to maintain service continuity. Clause 71(7) provides clarity in stating that a relevant authority may determine whether to carry out a procurement exercise where an expression of interest has been withdrawn. I hope that that will persuade my noble friend to withdraw his amendment.
Lord Greaves
My lords, I will withdraw it in a minute. However, I will, as always, read carefully what my noble friend has said and decide whether any of the amendments in the group need further pursuit.
The more I hear this debate, the more I am concerned about the word “challenge”. I think “challenge” is wrong because it is an adversarial word. If any of these arrangements are going to work, there will have to be a willingness on both sides—that is to say, on the part of councils and the organisations that are making a bid to run services—to make them work. There has to be co-operation. If that is not there, frankly the arrangements are not going to work very successfully. What is needed more than anything else in many places is a culture change, which can best be created by people exhorting, explaining, being enthusiastic and persuading, rather than having hundreds of thousands of words telling people in detail what to do. If people do not like what they are doing, they will do it grumpily, and it will not work very well.
The only question I will ask my noble friend the Minister concerns all this talk of recalcitrant authorities. What estimate have the Government made of the number of local authorities which they expect to be recalcitrant in relation to this particular part of the Bill?
Lord Shutt of Greetland
I have no idea whether there is any estimate. When starting afresh with a new proposal, one of the things I think to myself is, “Could local government have done this anyway? Could it have said, ‘It could be that all sorts of bodies could do things rather better than us. Can we find ways in which we can give these opportunities?’”. I am doubtful that I have heard the answer. Therefore, because this has never been done, there might be a perception that this is the sort of thing that local government would not get up to on its own. The authorities could be recalcitrant in those circumstances, but in general I do not know, and I suspect that the calculation is not there because I do not see how you could get that calculation. However, it is worth looking at what has happened to date.
Lord McKenzie of Luton
I wonder whether the noble Lord can help me on a point which is prompted by this proposition. If you are switching expenditure from one authority to another and precepting increasing on the one hand and reducing on the other, how does that play as far as the calculations for council tax referenda are concerned?
Lord Shutt of Greetland
My Lords, I need real notice of that last point as it is a bit technical. I have not heard of parish council tax capping. I have never heard of it and have a feeling that it is not there. That is the simple response to that.
It may be that having a little amendment putting parish or town in the Bill could be helpful so that nobody is in any doubt that parish means parish and town. I understand and accept that. Of course, there is no symmetry in the sense of the sizes of parishes or towns. For example, I was in the former Elland urban district council area, which never got parish council status, yet Todmorden, which is a borough council, did. There is no symmetry, but nevertheless this House has a wealth of experience of people involved in parish and town councils, so it is not surprising that such an amendment creates interest.
Through the legislation as a whole, we are enhancing the role of parish councils. They will be able to exercise the general power of competence when they meet certain conditions. They will be able to nominate assets of community value and we propose that they can express their intention to bid for an asset, triggering the full moratorium or window of opportunity. They will be able to initiate the preparation of neighbourhood plans and we will also be carefully considering the arrangements for parish polls as part of our proposals for local referendums.
However, we believe that Amendment 133 is a step too far and, in addition, is unnecessary and risks cutting across the intentions of the community right to challenge. We already expect local authorities to engage with their communities on services, including with parish councils, as part of the commissioning and engagement process. Where there are representations, we would expect these to be considered and taken seriously. If representations are made and concern over service delivery remains, parish councils are already named as relevant bodies under the community right to challenge. They would be able to issue a challenge to deliver the service if they believed they could do so differently or better. Relevant authorities will have carefully to consider these challenges.
Lord Greaves
Will my noble friend confirm that it will still be possible for district councils or any principal council to come to an arrangement voluntarily with their parish councils to transfer service delivery to the parish council outside the provisions of the community right to challenge?
Lord Shutt of Greetland
My Lords, I believe that is the case. I do not see that that should be disturbed by anything that the Bill is doing. The noble Lord talked about it the other way round, saying that sometimes district councils try to offload and the parish says, “No, we would sooner you kept doing this”. I do not see that there is any reason why that cannot be done under present arrangements. The right to challenge is a different principle. There is a risk that this amendment could catch relevant authorities in an endless and burdensome cycle of considering requests and counter-requests from different parish councils in their area that have different ideas and preferences as to how services should be run.
Finally, the amendment would risk cutting across the community right to challenge as a whole. Requests from parish councils to provide services differently, which might include the service being provided by the parish council or by another organisation, would potentially override expressions of interest from other relevant bodies. I hope that in the circumstances the noble Lord will feel able to withdraw his amendment.
Lord Lucas
I thank my noble friend for that reply but not for the content of it. We will come to these matters again. I understand what he is saying, but I think that the Government are falling short of the ambitions that they should have in his saying that. We are taking a step towards making parish councils serious bodies for which serious people in the community stand and expect to do serious things. To put them in a position where the only thing that they can promise their electorate is to take a particular attitude on planning is seriously missing a trick. There are many other things that good people in a community should have an influence over. They should feel that they can go to their electorate and say, “I will do this for you”, and not just, “I will go cap in hand to the district council” but “I will make a request that the district council has to consider”, or some equivalent. We ought to be looking at ways of empowering parish councils and particularly town councils in relation to the districts and the counties that sit above them. I am sorry that the Government feel that they have gone far enough in this legislation. I hope that when we get experience of parish councils and town councils being what they can be under this legislation, we will take a step forward.
It is not so much the problems of the noble Earl, Lord Lytton, that I am thinking about. His sort of parish under this Bill will become rich in opportunities to raise funds as a result of development, which will enable it to do whatever it wants with its verges. It really will not be a problem for them, but the Bill is a serious problem for city parishes, first of all because there are no parishes. If you look at my bit of Battersea, there are no lines drawn other than the ward boundaries, and they change every time the Electoral Commission has hiccups. There is no community on the ground, and Battersea is a relatively homogenous corner of London.
There are bits of London where you have an enormous mix of different communities with strong ties within them and very few ties between them and to the locality. To build a community there which can take advantage of the facilities in this Bill to influence planning requires that the organisations we create can have influence beyond mere planning. Most of the lives of people in the community are dictated by the ways in which the local authority chooses to spend money on them, to police them and to require things of them. If they want to do something as simple as having a real influence over the provision made for their children, particularly in terms of early years, youth clubs, youth provision and help into work, all of which are substantial programmes going through Government and through local authorities, they have no right to do so. No one can promise that under this Bill the neighbourhood will have a real influence on those sorts of things. Unless we offer communities that ability, we will never create the communities to take advantage of this Bill. This will be a Bill that does not happen in the cities because no one ever gets going because no one can create the consensus because there are no powers on offer that are relevant to the local communities.
I think that is a serious problem with the Bill and one that I hope the Government will think about. I hope that the Opposition will think about it, too, because I associate the Opposition with having some interest in cities from time to time. I was particularly disappointed by the noble Lord’s lack of interest in this amendment. I hope I manage to interest him in some of my later ones. It seems sad to me that the Opposition are just interested in the rural vote and have no care left for cities. Perhaps that is being left to the Liberal Democrats, for whose support I am grateful. I beg leave to withdraw the amendment for now.
Localism Bill
Lord Shutt of Greetland Excerpts(13 years, 5 months ago)
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Lord Beecham
My Lords, I also have an amendment in this group. First, I endorse what the noble Lords, Lord Shipley and Lord Greaves, have said in speaking to their amendments. My Amendment 133ZEA is effectively to replace the Secretary of State’s regulatory function—again we come across the Secretary of State’s regulations—with the relevant authority being allowed to determine and publicise the relevant periods between accepting an expression of interest and beginning the procurement exercise. That really ought to be a matter for local circumstances and local decision and not something prescribed nationally.
Lord Shutt of Greetland
My Lords, Amendment 133ZC would remove the Secretary of State’s power to specify minimum periods for the submission of expressions of interest. Amendment 133ZEA would require relevant authorities to set and publicise minimum and maximum periods between an expression of interest being accepted and a procurement exercise starting. Amendment 133ZE would remove the Secretary of State’s power to specify these periods, which would have a similar effect. We have taken these powers to ensure that power really is pushed down into the hands of communities.
The power to specify minimum periods for submission of expressions of interest will ensure that relevant bodies have sufficient time to prepare and submit them. The power to specify a minimum period between an expression of interest being accepted and a procurement exercise starting will, in particular, ensure that employees, where they are not the challengers, have sufficient time to decide whether they wish to organise themselves to bid, and do so effectively. This will support the Government’s commitment to give public sector workers the right to bid to take over running the services they deliver. It should also help smaller and newer voluntary and community bodies. The power to specify a maximum period will prevent a procurement exercise from being unnecessarily delayed.
The majority of relevant authorities will, of course, act within the spirit of the right, but these powers will prevent a recalcitrant authority from specifying periods that are so short that they stymie relevant bodies wishing to use the right. However, following our recent consultation, we are carefully considering whether some discretion could be given to relevant authorities on the timescales associated with the process to enable them to take account of local circumstances.
Clause 69(2) gives discretion to relevant authorities to specify periods during which expressions of interest could be submitted in particular services. Amendments 133ZA and 133ZB would instead require relevant authorities to specify periods during which expressions of interest in a particular service would be considered, changing the emphasis of this provision. Relevant bodies would then be able to submit expressions of interest at any time. However, this amendment could result in expressions of interest being submitted so far in advance that they would be out of date by the time the relevant authority considered them. The time within which a relevant authority must notify a relevant body of its decision on an expression of interest, provided for in Clause 71(4), is intended to provide time for consideration of expressions of interest. I trust that, in the circumstances, noble Lords will feel able to withdraw their amendments.
Lord Greaves
From my point of view, if this provides a bit more flexibility to deal with local holidays and things like that, it is welcome, but the whole thing is still complete nonsense. The idea that local authorities need to be told exactly what the minimum or maximum periods are, or need new rules to say, “This is exactly the flexibility you can have to increase it, or reduce it, or whatever”, is treating local authorities, as I said before, first of all like wholly owned subsidiaries of national government, and secondly like a kindergarten which needs to have its whole life organised for it by people from above. It is absolutely crazy and is typical of the entire ethos which lies behind the Bill. All the good stuff in the Bill is being ruined by this complete nonsense that local authorities have to be told what to do and how to do it in detail. I was thinking about this over dinner. I said before that it is to do with local authority cultures. Local authorities will never learn to be grown-up people who can make their own decisions and organise their own lives if this culture continues.
My honourable friend Andrew Stunell, one of the Ministers responsible for the Bill, complains almost every time I see him that he goes to local authorities and they keep asking him how they are going to deal with the new general power of competence. He says, “It is a new general power of competence and you yourselves will decide how you’re going to deal with it”. That is wonderful, but all through the Bill we have all these detailed regulations that go against that.
Local authorities nowadays will not do anything unless they have such regulations. So long as these regulations continue, local authorities will lack imagination and enterprise. They will be the opposite of what we want them to be. The civil servants and the Government have to let go. Until they do so, there is no hope.
Lord Shutt of Greetland
My Lords, I thank the two noble Lords who have taken part in the debate. I have several notes here for responding to these things, and if I do not pick everything, I hope I can write to them afterwards.
We have to remember as a preliminary to all this that this is the Localism Bill and there are some new things here, but that that does not get rid of old things. Therefore, if something is in the law at the moment, no other apple carts are upset. That is the fact of the Bill. However, Amendments 133ZD, 133ZJ, 133ZM and 133ZEC address areas in which existing legislation will apply and where services are contracted out following a successful challenge under the right. Amendment 133ZD would require a relevant authority accepting an expression of interest to decide whether it was going to carry out a procurement exercise, and either carry out that exercise or negotiate with a relevant body on the terms on which it may deliver the service.
Clause 70(3) already requires the procurement exercise carried out by the relevant authority following a successful challenge to be appropriate and have regard to the value and nature of the contract that may be awarded as a result. Therefore, where the service is of a nature or value to which the Public Contract Regulations 2006 apply, the relevant authority will need to follow the procedures set out in those regulations for advertising, tendering and awarding contracts. However, where those regulations do not apply—for example, where the value of the service is below the threshold of £156,000 for local authorities or the services are otherwise exempt—authorities have the discretion to decide how to procure the service, just as they already do when contracting out services.
Amendment 133ZJ would require any contract that a relevant authority entered into following a successful challenge to be subject to the Transfer of Undertakings (Protection of Employment) Regulations 2006—TUPE. The TUPE regulations already specify the instances in which they will apply. We are not seeking to change those through the community right to challenge.
Amendment 133ZEC would require a relevant authority to consider whether acceptance of an expression of interest would promote or improve equality of service provision in its area. Amendment 133ZM would apply the duties with which a relevant authority must comply under the Equality Act 2010 when delivering a service to a relevant body delivering a service on its behalf.
Relevant authorities will need to comply with their duties under the Equality Act when delivering services directly, when considering expressions of interest, when contracting out following a successful challenge under the right, and when procuring services outside the right. As is currently the case, when contracting out services authorities will need to satisfy themselves that they have fulfilled their duties, for example by including appropriate requirements in contracts.
Amendment 133ZF would remove the requirement for a relevant authority's consideration of how it might promote or improve the social, environmental or economic well-being of its area through the procurement exercise, to be consistent with procurement law. The amendment would remove clarity where it is needed. A relevant authority considering how it might promote or improve the social, economic or environmental well-being of its area must do so in a way that complies with procurement law. Failure to do so provides a number of grounds for legal challenge.
Amendment 133ZH would enable a relevant authority to specify in relation to contracts entered into following a successful challenge: arrangements for supervision, monitoring and assessment; service levels and standards; and the action that may be taken by the authority where those are not met, including a procedure by which the authority may take the service back in-house. Relevant authorities can and do include requirements in contracts for performance and monitoring. The right does not restrict them from continuing to do so.
Amendment 133ZG would require contracts let following a successful challenge to be time-limited. Authorities enjoy the freedom to enter into contracts for whatever period is relevant to the needs of their service users and to the need to obtain value for money. The amendment would unnecessarily restrict that freedom. In other words, there is no prescription on that. That is not a regulation; it is not in the Bill.
In the circumstances, I hope that the amendment may be withdrawn.
Lord Greaves
My Lords, there have been a number of useful and welcome statements, which have helped us to understand how this might work. I will read them carefully, as usual. There are one or two other issues, such as the TUPE business, for which the Minister said that nothing has changed, but it might still be helpful to know how it might apply to different circumstances under the Bill. For the moment, I beg leave to withdraw the amendment. In general, they were very helpful responses, and I will read them carefully.
Lord Beecham
This amendment, and the other amendment in this small group, Amendment 133ZEB, relate to the situation where the challenge is made by two or more employees of the authority under the provisions of the Bill. The first amendment requires the consent of the majority of the workforce likely to be affected before the authority is obliged to accept the expression of interest. That seems a sensible precaution.
A previous amendment would have raised the number from two to five but, if I may say so, that is almost irrelevant. It would be wrong for a very small group of employees of an authority to have an expression of interest accepted without the support of people in the authority who might be affected by the decision to proceed with the challenge. I hope that the Minister would agree it would be essential in those circumstances for a majority of those who would be so affected to endorse the proposition, even if it were made by a relatively small number. It would not be a cumbersome or difficult exercise to test the opinion of the relevant workforce, and it would clearly be a sensible precaution.
The other amendment is based on concerns about the operation of EU competition and procurement law, particularly in the case of a service that had been carried out by the authority becoming outsourced. This is legal territory into which I venture with trepidation. It has never been my area of legal specialism; it is not an area in which perhaps many in my profession are all that confident. There seems to be a risk in these cases that when an undertaking has been carried out by a public body and outsourcing takes place with the relevant workforce, that may expose the procedure to the rigours of the competition and procurement laws that might then lead not to a community organisation taking over but a private enterprise, which is quite outside the intentions of the legislation.
The amendment would require the authority to take a view—and take advice, of course—about the potential problem. If it was not a problem, of course, the expression of interest could go ahead. If it were to be a problem the amendment would allow the authority to reject the expression of interest on the grounds of a serious risk of the intention of the expression of interest being frustrated by some entirely extraneous body being able to enter into the procurement procedure and win the contract. This is not intended to be a destructive proposal. On the contrary, it is intended to help the legislation fulfil its intentions, and I hope that the Government, if not tonight, will be prepared to look at these two amendments to see whether they can be adopted in the interests of their own position on the Bill. I beg to move.
Lord Shutt of Greetland
My Lords, Amendment 133ZDA would require that a majority of the workforce affected by an expression of interest submitted by employees of the relevant authority consented to a procurement exercise before it went ahead. We agree that employees affected by an expression of interest submitted by their colleagues should be engaged in the development of the proposal and we are looking at how this might be reflected in the requirements for an expression of interest. The face-to-face meetings, intranet updates and staff clinics undertaken when some 1,200 staff from the Hull Primary Care Trust transferred to a social enterprise under the NHS right to request scheme is a good example of how employees have been engaged in a proposal. However, when a local authority decides to undertake a procurement exercise for services outside the community right to challenge, there is no requirement to secure the consent of the majority of the workforce affected by it. This amendment may therefore act as a barrier to services being provided differently and better. Of course, the requirement for employers to inform and consult representatives and employees affected by a prospective transfer of employment will continue to apply.
Amendment 133ZEB would enable a relevant authority to reject expressions of interest when EU procurement or competition law is likely to apply. The Public Contracts Regulations 2006, which are part of our domestic law that implement EU procurement law, set out requirements in relation to procedures for advertising, tendering and awarding contracts when the value of the service is more than £156,000 for relevant authorities or the service is not otherwise exempt. Authorities will already need to comply with these requirements in deciding what kind of procurement exercise to carry out for a service, and will need to continue to do so following a successful challenge under the right. The amendment would enable relevant authorities to reject an expression of interest in all but the smallest services, dramatically reducing the scope of the right. I hope that the noble Lord will withdraw his amendment.
Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011
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Lord Shutt of Greetland
That the draft order laid before the House on 5 April be approved.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments
Lord Shutt of Greetland
My Lords, I beg to move that the House does approve the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011. This order further extends for two years the period during which trials without jury can take place in certain circumstances in Northern Ireland. Without this order, the system allowing for non-jury trials would lapse on 31 July this year. I propose that it be extended for a further two years.
Non-jury trials take place in very limited circumstances, where the Director of Public Prosecutions issues a certificate. The DPP can issue a certificate only if one or more of four statutory conditions, which are laid out in Section 1 of the Act, are met. Furthermore the DPP must be satisfied there is a risk that the administration of justice might be impaired if a jury trial were to be held.
The four conditions relate to the circumstances of the offence and the defendant. Condition one is that the defendant is, or is an associate of, a member of a proscribed organisation. Condition two is that the offence was committed on behalf of a proscribed organisation or a proscribed organisation was involved. Condition three is that an attempt has been made by or on behalf of a proscribed organisation to prejudice the investigation or prosecution. Condition four is that the offence was committed as a result of, or in connection with, religious or political hostility.
This system, which focuses on risk, is very different from the Diplock court system, which preceded the current non-jury trial provisions. The default position under the Diplock system was that all scheduled offences would be tried by a judge alone. Now, under the Justice and Security (Northern Ireland) Act 2007, there is a clear presumption that jury trial will take place in all cases. Certificates are issued only when absolutely necessary in the interests of the administration of justice and where the particular statutory tests are met.
Of course, we all want to get to the point where trials for all indictable offences in Northern Ireland are heard by a jury and there is no need for these provisions. As noble Lords will no doubt be aware, there has been significant progress in Northern Ireland towards normalisation. This culminated in the devolution of policing and justice powers to the local Administration in April of last year. The local elections in May were the first in a generation to be fought on bread and butter issues. Northern Ireland has come a long way.
Sadly, despite this progress, there remains a serious threat from a small but dangerous minority who have no mandate but who are determined to drag Northern Ireland back into the past. The House will recall the horrific murder of the young PSNI Constable Ronan Kerr on 2 April this year. People and political leaders from across Ireland, both north and south, were joined in their condemnation of PC Kerr’s appalling murder. However, the terrorists have shown disregard for the community’s resolve and continue to engage in acts of terrorism. On 8 April, terrorists abandoned a vehicle containing a 500-pound bomb close to Newry, putting at risk the lives of police officers and members of the public. There have also been a number of other security alerts over recent weeks. On Saturday 25 June, the Gardai discovered improvised mortar components and a substantial quantity of fertiliser in County Louth. The total number of attacks in 2011 on national security targets currently stands at 14. There were 40 such attacks in 2010. The PSNI continues to disrupt those intent on causing harm to the community and so far this year has made 101 arrests in connection with terrorist activity. The disturbances that took place in East Belfast last month show that, unfortunately, paramilitary influence remains an issue in both communities in Northern Ireland.
It is against the backdrop of this severe threat that the Government seek to renew the non-jury trial provisions. The threat brings a serious risk that jurors appointed in criminal trials could be subject to pressure and intimidation by terrorist or paramilitary organisations. There is also the associated risk of perverse acquittals, where jurors may be coerced into returning a not guilty verdict.
In reaching a decision on whether to seek the renewal of the provisions, the Secretary of State consulted a number of individuals and organisations on the need for non-jury trials. They included the noble Lord, Lord Carlile of Berriew, the independent reviewer of national security arrangements in Northern Ireland, who concluded that the threat from terrorism and the risk of disruption of trials remain live and recommended that for the time being non-jury trials should continue to be available. The chief constable of the PSNI and the Attorney-General, in his capacity as Advocate-General for Northern Ireland, also agreed that in view of the current circumstances a further two-year extension should be sought.
The number of non-jury trials in Northern Ireland—
Lord Trimble
The Minister has just given us the views of various people. Were representations and expressions of view given by persons, organisations or political parties in Northern Ireland? What was the balance in those representations in favour of continuing with non-jury trials or otherwise?
Lord Shutt of Greetland
This was a limited consultation in terms of the numbers invited, but all political parties based in Northern Ireland were invited, as well as the Committee on the Administration of Justice and the noble Lord, Lord Carlile. There was not a 100 per cent return in terms of invitations to respond. I am told that not many political parties did in fact respond. Of the 11 responses, nine were that we should continue with these provisions and two took the view that we should not.
The number of non-jury trials in Northern Ireland remains relatively low. So far in 2011, the DPP has issued 12 certificates for non-jury trials. In 2010, 14 certificates were issued. These figures are low but significant and show the ongoing need for non-jury trial. The Government want to see a return to full jury trial in all cases in Northern Ireland as soon as possible. However, given the current severe threat from residual terrorist groups in Northern Ireland and its bearing on criminal trials, the renewal of these provisions for a further two years is the right thing to do. I commend the order to the House.
Lord Cormack
My Lords, I strongly support the speech of my noble friend. Noble Lords will know that I was chairman of the Northern Ireland Affairs Select Committee for five years before the last general election, and in that capacity conducted inquiries into organised crime, among other things. When we conducted our inquiry into organised crime, it was quite plain that many people were not prepared to give evidence to the Select Committee in public, for fear of intimidation. Things have moved on and it is a very good thing that the majority of trials in Northern Ireland are now trials by jury. However, my noble friend is right to point to the real threat from dissidents, about which both Sir Hugh Orde and his successor have consistently and repeatedly warned us. It is notable that so few responded to the consultation exercise with a negative view.
I will just refer to two particular crimes that my noble friend did not cite: not only the ghastly murder of the police constable this year but also the murder of PC Carroll; there was also the most barbaric murder of Paul Quinn, for which no one has yet been brought to trial. The last inquiry that my committee conducted was into the Omagh bombing and we must remember that nobody has been brought to trial in a criminal court and convicted of that most terrible of all atrocities in Northern Ireland. Against that background, where the most despicable criminals have not yet been brought to trial, largely because of the fear of people giving evidence, it is absolutely essential that the provision in the measure before your Lordships’ House is retained for two years.
There are many noble Lords in this House who know far, far more about Northern Ireland than I do because they come from that glorious part of the United Kingdom. They must feel, as I do, that real progress has been made—all those present tonight contributed to it, and one of the particular contributors was my noble friend Lord Trimble. We are well on the way to normality but we are not there yet. Until we are there—until there is no fear of intimidation—we have to retain this provision. It is right that my noble friend brought the measure before us tonight. It is right that your Lordships’ House should support it. In conclusion, I very much hope that in two years’ time he does not have to come here again and ask for a further extension, but if the circumstances are still as they are today he will have to do so.
Baroness Smith of Basildon
My Lords, I have listened with great care to the debate and it is clear that none of us welcomes the order before us. The Government have informed us, and it has been endorsed by noble Lords, that it has been brought forward because of necessity. The Minister’s comments on that were a wise reflection. We are not in a normal situation and we should never regard it as such. We have to continue to move towards normalisation of the courts and the justice system. The noble Lords, Lord Shutt, Lord Bew and Lord Maginnis, all recognised the enormous progress that has been made in moving towards normalisation in Northern Ireland but we recognise that some parts of the justice apparatus are not yet able to be fully normalised. That has to be the right direction to move towards and one that has our total support.
The key issue of importance in this order is the maintenance of public confidence in this position. Obviously, we will not oppose the order tonight, but I am sure that the Minister is aware that accountability and transparency of decision-making if a case is not to be heard by a jury are extremely important. Each decision must be taken on a case-by-case basis. We certainly agree with the Minister and support the reduction in the time before it will expire from four years to two. I welcome the comments he made at the beginning that there should be a return to jury trial as soon as possible. It is clear from the discussion this evening that no one wants to move towards a rolling extension of such an order every two years. Should a further order be necessary in the future, I hope that the noble Lord will take back to his ministerial colleagues the comments that have been made about consultation and the issues that have arisen. That could play into the comments and concerns that I have about accountability and transparency and ensuring that we maintain public confidence in the system.
I have four points to raise with the Minister that I think will be helpful to noble Lords. He set out some of the reasons why he felt it necessary to extend the order. It would be helpful to have a little more detail on that. That is my issue about public confidence in the judicial system. It is always important and prudent to be as transparent and open with us as he can possibly be but I recognise the difficulty. I understand the Government’s concern, which has been raised by other noble Lords, about jury interference. Is he able to tell us about any other action that the Government are seeking to take to deal with the issue of jury interference because that will help towards looking into the future of reinstating jury trials? Furthermore, as the decision will continue to be made by the DPP, can the Minister say more about the criteria that are used by the DPP when deciding whether or not the case should be heard by a jury? He gave the four criteria at the beginning, but I am interested in the weighting of those criteria and the fact that only one has to be met for the DPP to decide on a non-jury trial.
I wonder whether the Minister has further information about the limited circumstances in which a certificate for a non-jury trial would be provided. If he has not, I am happy for him to write to me about this. Fourteen certificates for non-jury trials were issued in 2010 but 12 have already been issued in 2011, which indicates that there will be a much higher number issued in 2011 than in 2010. We are all aware of high profile cases that have yet to come to trial. If we were to see that increase year on year, the Minister will recognise the significance of that. I am interested in the number of cases considered for jury and non-jury trials. What is the balance between those for which the DPP grants a certificate for a non-jury trial and those that he would not grant a certificate for a non-jury trial? We have to be concerned about the numbers increasing when we are seeking to move towards normalisation of the justice system.
I thank the Minister for his helpful explanation that has led to a thorough debate on this issue. I hope that he will take away the comments to his colleagues in the department who can reflect on them to see whether improvements can be made, particularly with regard to consultation in future.
Lord Shutt of Greetland
My Lords, I thank all noble Lords who have taken part in this debate. I am grateful to the noble Lord, Lord Cormack, for speaking about his experience in the House of Commons of dealing with Northern Ireland matters and I note that he spoke about people’s fears. I am delighted to hear that the noble Lord, Lord Maginnis, is an optimist. That is a good place to be in regard to Northern Ireland. We need more such optimists. I hope that he continues to be an optimist. I am also delighted that he praised the exemplary work done by Garda Siochana. I noted with concern what he had to say about threats to prison officers. I will ensure that that is taken back to the department so that people are aware of it. I am also concerned that he feels that there is a communications problem. The Secretary of State has spoken to Peers about Northern Ireland matters for a number of years, but such a meeting has not taken place for a while. I will draw to the Secretary of State’s attention that it is time we had another. We have said that we would endeavour to hold three such meetings a year. I think that we are not up to scratch on that. I will certainly take that back to the department.
I am delighted that the noble Lord, Lord Glentoran, is also an optimist—what an optimistic day—and that he believes that the police service is not complacent. I am delighted to hear my noble friend Lord Alderdice speaking on the day on which his report—the 26th and final report of the Independent Monitoring Commission—has been produced. I am sure that all noble Lords are very grateful for the work that the noble Lord and his colleagues have carried out over many years in monitoring the willing. Sadly, much of the dissident republican and dissident loyalist violence that we are still talking about is the work of the unwilling. I noted with interest my noble friend’s comments on a possible way forward. I have heard the voices but we will have to make a judgment closer to the time on whether there is a need for a public consultation. Happy would be the day when we could say that we did not need the two-year period. That could happen. It does not have to be a case of two plus two plus two, but we want to take into account the impact and effect of other changes to the criminal justice system which the local Administration is taking forward. At the moment we can extend this provision only for two years. My noble friend suggested that we look at a three-judge system. I will take that option back to colleagues. Obviously, that would constitute a big change but I understand why he has suggested it. We routinely have one judge presiding over a criminal case and if a defendant is not satisfied with a verdict, there are the usual routes of appeal.
In the early days of the Diplock courts, there were more than 300 cases. That figure diminished over time but in the past five years of the present regime there have been 12, 25, 11, 14 and 12 so far this year. However, as the noble Baroness indicated, the figure could now be going higher than the year before and the year before that.
The noble Lord, Lord Bew, indicated his reluctance but said that he strongly supported the extension. We are all reluctant, I am afraid, and wish that we did not have it to do. He gave a comforting reminder of the splendour of the democratic system. Nevertheless, there are those who do not want to participate in what it brings forward. He was concerned about consultation and I shall take his concerns back.
The noble Baroness, Lady Smith, agreed that the order is a necessity. She is concerned about public confidence. However, as I understand it, this is an exceptional system; it is used only in limited circumstances on a case-by-case basis and there is a presumption for jury trial, the opposite of Diplock. The noble Baroness asked about other action. I am not aware of any that I should draw to the attention of noble Lords but, if there is, I shall write to her. After looking at all the papers and all that I have read, I am not certain that there is another initiative of which I am able to speak. However, if there is, I shall drop her a line on that. The noble Baroness referred to other steps. This is now a matter for the devolved Administration and the PSNI. All we can do is support them in their efforts to reduce intimidation.
I like to have figures available but I cannot say, for example, that there were 12 cases in a non-jury setting and 3,000 otherwise; I do not have those kinds of numbers. We shall endeavour to provide the figures—I am sure they must be available—but it is clear that the figure for non-jury trials is very low.
I hope I have dealt with the comments made by noble Lords and that your Lordships will agree to the renewal of the order.
Localism Bill
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Lord Greaves
My Lords, I underline what my noble friend has just said. I am sorry that the noble Baroness, Lady Andrews, is not here to take part in the discussion today because she was the Minister who had to take this nonsense through the House. She did it with great composure and good manners, although I am not sure what she secretly thought about it. The other Minister involved was the noble Lord, Lord Patel of Bradford, who is here. Perhaps he can tell us whether he is quite as appalled that this duty is going as the noble Lord, Lord Beecham, suggested.
I regret to say that I, too, am extremely familiar with the Local Democracy, Economic Development and Construction Act 2009, particularly this part of it, and it is seriously flawed. As an explanation of local democratic involvement, it completely missed out the voluntary sector, local partnerships and so on, which some of us tried to put in but failed. As my noble friend said, it is extremely prescriptive. If it is localism, it is top-down localism of the kind that we are criticising in this Bill, and it is very pleasant to see that this Bill is getting rid of a bit of that.
The effect that this part of the Act has had since it was passed appears to have been zero in most parts of the country. I am not aware of any authority having done anything significant as a result of this legislation, and in two-tier areas it set up a ridiculous bureaucratic system of exchange of information. Again, I have no idea how many councils have actually been carrying out this duty, but I suspect that a lot of them have just been ignoring the legislation because it was fairly useless. So I, too, rejoice that this duty is going, and I wish that the spirit behind this clause was more prevalent in some other parts of this Bill.
Lord Shutt of Greetland
My Lords, I will not please you all but I thank noble Lords who have taken part in this debate. This clause removes the duty on principal local authorities in England and Wales to provide information to people about how local government systems work. This might include providing information on the role of councillors, councils, relevant public bodies, civic roles and so forth. As has been indicated, it was part of the Local Democracy, Economic Development and Construction Act 2009. My noble friend Lord Greaves has not heard much about it is because the duty has not yet commenced and therefore its repeal will have no significant impact on authorities. We therefore wish to remove it from the statute book as it would constitute, if it were to be enacted, an unnecessary burden on local authorities.
The Government are committed to enhancing local democracy, but they also want to guard against adding costly burdens to local authorities. Many authorities are already doing lots of good work to provide information to people about local government systems without having a duty placed on them to do so.
Lord Greaves
My Lords, I cannot resist adding just a little bit to what has been said. I went back to the Local Democracy, Economic Development and Construction Act when I saw Clause 29 stand part on the Marshalled List. There are in it 10 pages of detailed, prescriptive instructions to local authorities about how to receive petitions. Our discussions on that part of the Bill were extremely long, and I hold my hands up and say I was largely responsible for that. I remember my noble friend Lord Tope, having arrived back from one of his European trips, coming into the Moses Room, where we were discussing the Bill in Committee, and saying, “Good heavens! You’re not still on petitions, are you?”. But we were. I again pay tribute to the two then Ministers, including the noble Lord, Lord Patel, who is in his place, for making some effort to improve that part of the Bill. I think that it was 14 or 15 pages when it started off, and we at least got it down to 10.
My view is that very few authorities have taken petitions through this system, and that most petitions to local authorities since the legislation came into operation have continued to be dealt with as they always have been. I do not think that my own council has had a single one. We have had one or two that appeared to qualify. In those cases, we have suggested that the petitioners do what everybody else does and just go along to the area committee, talk to the petition in the normal way, and get it dealt with within days rather than the weeks and weeks of bureaucratic procedure set out in that part of the Bill. So I, too, rejoice that this nonsense has gone. I agree entirely with the noble Lord, Lord Beecham, that we are getting a bigger and more dangerous nonsense, which we will discuss later on today.
Lord Shutt of Greetland
My Lords, I am delighted to respond once more to further rejoicing. I thank the noble Lords for their contributions.
At present, local authorities are required to make, publish and comply with a scheme for the handling of petitions made to the authority. It must include centrally prescribed information, and the scheme and any subsequent changes to it must be approved by a meeting of the full council. Local authorities are also required to provide a facility for making electronic petitions to the authority.
The current legislation means that local authorities must respond to a petition in a certain way and must hold a full council debate if it is signed by the number of people specified in the council’s petition scheme. Senior officers can also be called to account and are required to take part in a public meeting if a petition meets a signature threshold. Petitioners can request that the council’s overview and scrutiny committee reviews the council’s response to the petition if it feels it is not adequate. The prescription and cumbersome bureaucracy this has piled on local authorities is unjustifiable. I am not aware of any evidence that the service received by local people has improved, yet unlike the previous matter it has already resulted in a burden of £4.2 million across the sector, as well as money spent on set-up costs.
Lord Greaves
My Lords, the noble Lord is persuasive in his arguments by suggesting that what is happening here is that the Government are removing the freedoms of local authorities, but it is not quite like that. The freedoms that he is talking about are very prescriptive and if he reads the particular part of the Climate Change Act, he will discover that. These waste reduction schemes are all nonsense, really. I keep using that word but I remember that this is another part of a Bill where I made a nuisance of myself in your Lordships’ House by detaining the House for probably too long while it was being debated and discussed.
The Bill refers to schemes relating to the amount of waste, the size and type of the containers and the frequency of collections. There was what was colloquially known at the time as the chip-in-bin scheme, where a chip in a bin would in some magic way measure the amount of waste being provided. There was the big bin and little bin scheme, where if you had a little bin you were okay and got it for free, but if you had a big bin you had to pay more for it, which affected large families. There was the pound-a-sack scheme, where you had to go and buy approved sacks for a pound each and fill them up—a scheme which was reported to have worked extremely well in Maastricht, but probably nowhere else. There was also a frequency of collection scheme, where you had a weekly collection, but if you wanted it more frequently you had to pay—the pay per day scheme. So these four schemes took on an iconic quality as far as the last Government were concerned, but they have never been brought into effect because they are not the way to go about it.
Rather unusually, what the Secretary of State is doing is championing a waste collection service that is a universal free service. That is what he is championing and I thought the Labour Party used to believe in such things. But not now, it wants the chips-in-bins and the pound-per-sacks schemes and all the rest of it. I am delighted to see this go. I wish we had been able to persuade the last Government that we should not have wasted all that time on legislation that was never introduced.
Lord Shutt of Greetland
My Lords, Clause 30 removes powers that enable local authorities to run pilot waste reduction schemes. We announced our intention to remove these powers in June 2010. We believe that rewards rather than penalties are the best way to encourage people to reduce the amount of waste they produce. We wish to see local authorities helping householders to do the right thing with their waste, rather than punishing them for doing the wrong thing. We also consider that schemes which include fines based on the weight of residual waste left out by householders are likely to result in fly-tipping and other anti-social behaviour.
This Government are clear that rewarding householders for recycling or for reducing waste is to be encouraged; we want to help them to do the right thing. Removing these powers in the Climate Change Act will free up local authorities to use their broader well-being powers or general powers of competence, as appropriate, to provide rewards for waste reduction. Since their introduction there has been little appetite for using the Climate Change Act powers. No local authority has yet applied to take up a charge-and-reward scheme and no schemes will be dismantled as a result of their removal.
This clause simply removes Sections 71 to 75 of Part 5 and Schedule 5 from the Climate Change Act 2008. This will remove the provisions for waste reduction schemes but have no wider effect on the powers of, or burdens upon, local authorities. It is interesting that Royal Assent was on 26 November 2008, two and a half years ago, and no one has sought to bring this in. I therefore beg to move that these clauses stand part of the Bill.
Lord Beecham
My Lords, this is another case of local authorities having the power to do anything they like except what the Secretary of State decides they should not do. It is on a simple point of principle that this amendment is moved. I regret very much that the Minister and his noble friends do not seem to grasp the inconsistency inherent in their position, but so be it.
Localism Bill
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Lord True
My Lords, I intervene briefly from the perspective of a local authority. I think that most local authorities would have enormous sympathy with what the right reverend Prelate has just said. I am generally very suspicious of definitional creep. I do not think that the charity world has necessarily been helped by the major attempt to redefine a charity after doing away with the great simplicity and proven law of the Elizabethan statute. Therefore, I hope that we are not going to move down another definitional road.
I would not want to see local authorities not being able to have constructive dialogue with charitable organisations, because I think that discretionary relief is extremely important. On the other hand, sometimes premises are certainly not used as efficiently as they might be. It might be for the general good if two or three charities shared offices that might be improved, and I would not want to see that kind of exploration forbidden. Therefore, I, too, should like to hear from my noble friend, but I certainly feel that this is a provision that local authorities would like to stay long in law.
I could speak for a long time on the subject of the fine arts but I do not think that I will. The noble Lord, Lord McKenzie, referred to eloquence and I wondered whether his much admired contributions to these debates meant that debating was a fine art as well. If so, he should be part of it.
Lord Shutt of Greetland
My Lords, I thank the noble Lords who have contributed to this debate. It might be easier if I start with the right reverend Prelate the Bishop of Birmingham on the whole business of relief. The message is that there is to be no change in relief for charities. Whether it is mandatory or discretionary, the answer is, “No change”. There is no element of change in this provision. To me, the words that the right reverend Prelate is concerned about are a bit convoluted, but that convolution is because of the business rate element. For charities, however, I repeat that there is no change.
I return to the three amendments. Amendment 118A would require an authority to have regard to the interests of business rate payers as well as council tax payers. When the noble Lord, Lord McKenzie, spoke to the amendment, he was looking at contingent events rather than where we stand now. The words,
“only if it is satisfied that it would be reasonable”,
are included because the local authority that wanted to assist a business rate payer would have to realise that the council tax payer would in effect be funding it. The Bill is saying that a local authority has to be certain that it is reasonable, bearing in mind who will carry the burden.
Lord McKenzie of Luton
Just so that we can tick off this item as we go along, my amendment to include the business rate would still be qualified by “set by it”. It would not cover NNDR, which are set nationally by the national multiplier, and would come into effect only if circumstances arose in which there was local discretion on the business rate. Just as council tax is set by it the business rate would be set by it. My amendment sought to include those circumstances and the interests that had to be considered when applying discretionary relief. It was not meant to include NNDR as currently constituted.
Lord Shutt of Greetland
I understand that this is in order that the national business rate can be relieved by local government saying, “This is a bill that you don’t have to pay or that can be reduced”.
Lord McKenzie of Luton
I am sorry. I promise not to interrupt the noble Lord again, well maybe no more than once. I accept that what are being relieved by this provision are NNDR—the business rates—but the clause requires that when making judgments about discretionary relief there must be,
“regard to the interests of persons liable to pay council tax”.
Currently, they are the people who bear the cost of the discretionary relief. Should not the Government localise the business rate so that it is set locally in the future, it is another source of income set by the billing authority, and the interests of the persons involved in that are reasonably taken into account?
Lord Shutt of Greetland
My Lords, that may well be the case, but that is for another day. This clause makes it clear that the council tax payer in effect foots the bill, and it is for the local authority to say, “Look, be careful, the council tax payer is going to have to suffer this. Are you certain you are doing the right thing?”.
On Amendment 118B, I, too, have been having trouble with the definition of “fine arts”. All I know is that the “fine” is not the same “fine” that my noble friend Lord Attlee was having difficulty with. It is a different use of the word. The best thing to do is to go back to the Local Government Finance Act 1988. I have it here because I dug it out. The first thing I thought about 1988 was that it was the year after 1987. Actually I am thinking of 1997 and the previous Government, but it was a long time ago. That Act refers to premises,
“whose main objects are charitable”—
which in itself covers many arts organisations—
“or are otherwise philanthropic”—
which may also well cover arts organisations—
“or religious”—
which may also cover arts organisations. It then says,
“or concerned with education, social welfare, science, literature or the fine arts”.
We are exactly where we were before. The Bill does nothing to disturb, in a positive or a negative way, what can be done so that charitable, et cetera, bodies do not have to pay the full rates. I think that is a fair position. Others may well still have to consider the precise recognition of a fine art that does not happen to be charitable or philanthropic, or indeed whether it is an art that does not happen to be charitable or philanthropic, but many people will find a way of discovering that they are charitable or philanthropic. There is no reason why a local authority could not give grant relief to any arts organisation, provided that it considers the interests of council tax payers and fund the relief itself.
Under Amendment 118C, there would be no statutory duty on authorities to have regard to any guidance. If the Secretary of State chooses to issue guidance, it is likely to be largely administrative in nature, covering such matters as state aid issues and the relationship between billing authorities and precepting authorities. Such guidance may well be welcomed. Of course, authorities would only have to have regard to the guidance; they would still be able to grant relief in accordance with the law as they see fit.
I hope that I have responded to those three amendments and, indeed, the major matter of the integrity of the position on rate relief that remains for all sorts of charitable and other bodies. Therefore, I trust that the noble Lord will be able to withdraw his amendments and, indeed, that we will be able to stick to this clause.
Lord McKenzie of Luton
The thrust of Clause 40 is to automate the small business multiplier to improve uptake of the small business rate relief. We support this, but there are two components of the relief. Fundamentally, it is obtained by a small business multiplier—essentially the rate of tax—which is applied to the rateable value of a property, but, additionally, properties with rateable values of less than £6,000 are entitled to a further 50 per cent relief, with properties between £6,000 and £12,000 getting tapered relief. Currently, before the change proposed in the clause, the benefit of the multiplier and the further relief depend generally on a business occupying only one property as well as falling within the rateable value thresholds. In addition, a business has to make an application to that effect.
To make eligibility more automatic, the provisions of Clause 40 do away with the requirement for a business to make an application, and for the purpose of the small business multiplier, it is no longer necessary for a business to occupy just one property. However, for the further discounts to apply, it is necessary for the business to occupy just one property. Clearly, this latter component cannot be delivered automatically, and our amendment seeks to address this quite narrow and particular point. There is no formal requirement to make an application and, according to the impact assessment, it is left to each authority to determine how it goes about identifying those who are eligible. In essence, we consider that there should be an ongoing obligation for billing authorities to promote the small business rate relief. Noble Lords will be aware that the amendment has the backing of the FSB. Authorities will be helped in this by having on record prior applications concerning eligibility based upon single property occupancy. Noble Lords will be aware that the benefit of the relief is met by increasing the multiplier on other properties, so it is not met by government, but by other occupiers of hereditaments. I trust the Minister will be able to support this modest amendment. It is not a cost to government.
I shall close with two questions. Removing the requirement for single occupancy for the small business rate multiplier will lead to large as well as small businesses being able to benefit. Before, single property occupancy was equated with a small business, but now you can occupy lots of low rateable value property and still benefit from the relief. Have the Government made any estimate of the additional cost associated with large businesses now being able to access the benefit of this relief? Is single occupancy judged on an individual company basis, or are there rules which require matters to be dealt with on a group basis? I shall be grateful if the Minister is able to deal with those points. I beg to move.
Lord Shutt of Greetland
I thank the noble Lord for moving this amendment. Authorities are already under a statutory duty to provide information about small business rate relief with bills every year, and last year, we also requested authorities to write to all ratepayers with rateable values below £12,000 to remind them that they may be eligible for the relief. Take-up of the relief is already high, and the changes we are making will be able to push it even higher.
This amendment would therefore just place another unnecessary duty on authorities, which is something to which this Government are strongly opposed, and it would be one which central government would have to fund, so I cannot agree the amendment as such.
Lord Tope
My Lords, Amendment 118E is fairly clear and straightforward. In view of the time and in order to make progress and get on to the next part of the Bill, I will move this amendment formally so that the Minister can reply and we can have the reply on the record. I beg to move.
Lord Shutt of Greetland
My Lords, from day one, the Government have been committed to providing meaningful help to businesses hit by certain backdated rates bills, such as some businesses in ports. Despite the financial situation that we inherited, we have honoured our commitment to find a permanent solution to the problem and safeguard jobs and businesses. We are taking the necessary powers through Clause 41 of the Localism Bill to cancel these bills.
I welcome the spirit behind the amendment, which aims to clarify that only backdated rates liabilities between 1 April 2005 and 31 March 2010 can be cancelled. However, the current draft achieves this by limiting the cancellation to the 2005 rating list which applies only to chargeable days between 1 April 2005 and 31 March 2010, as the new 2010 list would apply from 1 April 2010. The draft regulations are clear that only an alteration to the rating list that occurred on or before 31 March 2010 can qualify for the cancellation. The amendment is not needed. New Section 49A(2)(a), as inserted by Clause 41, limits the cancellation policy to properties entered in the 2005 rating list, so the current draft already achieves the aim of the proposed amendment. I trust that this will be sufficient for the noble Lord to be able to withdraw the amendment.
Lord McKenzie of Luton
Does the noble Lord have a figure for the extent to which those who are getting the benefit of the removal of the imposition of backdating under the eight-year agreement have already discharged in whole or in part their obligations?
Lord Shutt of Greetland
My Lords, I have several papers here but that figure is not within them. I imagine this was raised when we discussed this a year or two back. However, I will write to the noble Lord and see that a copy of the letter is placed in the Library.
Northern Ireland: Bill of Rights
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Lord Smith of Clifton
To ask Her Majesty’s Government, following the recent elections to the Northern Ireland Assembly, what discussions they will hold with the political parties regarding the promotion of a Northern Ireland Bill of Rights in accordance with the 1998 Belfast agreement.
Lord Shutt of Greetland
My Lords, as my right honourable friend the Minister of State for Northern Ireland recently made clear in the other place, we want to see this issue resolved and will be taking the views of the new Executive, political parties and others in Northern Ireland on how best to move matters forward.
Lord Smith of Clifton
My Lords, that is a smidgen of an improvement on the Answer given the last time I raised this question, and I suppose that that is progress. Can my noble friend tell me frankly whether the Government are going to continue the previous Government’s policy of kicking this issue into touch, or when we might have some positive progress on implementing this last aspect of the Belfast agreement?
Lord Shutt of Greetland
My Lords, I cannot give any specific dates or times. Civil servants have already talked to people in the human rights fraternity in Northern Ireland, and the next job is to get involved with the Assembly and to get things moving. I said on the previous occasion, and I repeat now, that with the new Assembly there is an opportunity to break into this issue, which I understand is of long standing. It is important that we move forward.
Lord Kilclooney
My Lords, does the Minister recall that, when we negotiated the Belfast agreement, we had it specifically written into the agreement that there would be progress on human rights not only in Northern Ireland but in the Republic of Ireland? When will the Government make representations to Dublin to have the obligations under the Belfast agreement honoured after 13 years?
Lord Shutt of Greetland
My Lords, I cannot answer for the Government of Ireland. However, as I indicated on the previous occasion that the noble Lord, Lord Smith, raised this question, I wrote to the Government of Ireland to let them know of the concerns of the noble Lord, Lord Kilclooney. Your Lordships will note that, regardless of there being, in the noble Lord’s words, no progress, an Irish Human Rights Commission has been set up and is very busy in its work.
Lord Dubs
My Lords, does the Minister agree that this issue of a Bill of Rights for Northern Ireland has been going on for many, many years? Can he confirm that the Government will not allow any one political party in the Assembly to veto progress towards the commitment that we entered into?
Lord Shutt of Greetland
My Lords, I cannot give guarantees but I do not believe that there ought to be vetoes. The Belfast agreement is clear. Of course, one highly significant party in Northern Ireland was not party to the Belfast agreement. Nevertheless, it is important that this matter, which is almost the final piece of the agreement, has not really been tackled. It is a tricky issue. The noble Lord will recall that his own Government had a bit of bother with it; 12 years on, we have not got too far with it. However, because we have now had another election in Northern Ireland, there is an opportunity to make a fresh start, which the Government are very hopeful of doing.
Lord Trimble
My Lords, perhaps I may suggest to my noble friend that we would all benefit from a close reading of the terms of the Belfast agreement on this point? Those terms make it clear that the core of any possible Bill of Rights for Northern Ireland is to be the European Convention on Human Rights, possibly together with some supplemental matters to reflect the special circumstances in Northern Ireland. That is open to a lot of interpretation, and is there not a very clear and quite principled disagreement between the major parties in Northern Ireland on its interpretation?
Lord Shutt of Greetland
My Lords, people can interpret these things differently. However, the agreement of 10 April 1998 quite clearly talks about rights supplementary to those in the European Convention on Human Rights to reflect the particular circumstances of Northern Ireland. It states:
“These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR— to constitute a Bill of Rights for Northern Ireland”.
Those are the words of the Belfast agreement.
Baroness Smith of Basildon
My Lords, the Government said, as the noble Lord has confirmed, that they would return to the issue of the Bill of Rights following the election of the new Assembly and Executive, which are now in place. The Prime Minister has also written that he stands ready to facilitate agreement. Can the noble Lord inform us—I have not got this from his answers so far—of the actions taken by the Government to date, following the elections, to facilitate that agreement? Also, what discussion have the Government had with the commission on the UK Bill of Rights on the Northern Ireland Bill of Rights?
Lord Shutt of Greetland
My Lords, I am not certain about discussions with the new UK commission. It is involved throughout the United Kingdom. It has sought people to help it from Northern Ireland, Scotland and Wales. I do not think I am able to say that any further work has been done, but talks about talks are going on. I mentioned that civil servants have already been to Northern Ireland to get things moving. It is only a matter of weeks since the Stormont election and there could be criticism of the time, but this is on a different scale from the 12 years that elapsed under the previous Administration.
Arrangement of Business
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Lord Shutt of Greetland
My Lords, there are 51 speakers signed up for the Education Bill Second Reading today. If Back-Bench contributions are kept to six minutes, the House should be able to rise this evening at around the target time of 10 pm. This advisory time excludes the Minister's and Opposition's opening and winding-up speeches.
Environment: Drought
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Courts: Magistrates’ Courts
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Lord Shutt of Greetland
We have time for a Member of the Labour Benches and then we had better hear a view from this side.