Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Monday 31st October 2011 Lords Chamber

[Lord Greaves]

My Lords, I will just add a few brief things. My noble friend reminds me of one or two things which I had thankfully forgotten about. I was trying to remember how many amendments I actually put to this chapter of that Bill when it came. That is also something I had forgotten about, which is something that happens.

The noble Lord, Lord Beecham, quite rightly said that councils have to welcome and encourage petitions. But what is really important is the seriousness with which they treat them and deal with them when they come. You can set up as many bureaucratic, complex, legalistic schemes as you like, but if people do not treat the petitions seriously it is just going through the motions and wasting time and energy. If people treat petitions seriously you do not need a complex, bureaucratic, top-down—and, I have to say, pretty patronising—piece of legislation like Chapter 2 of Part 1 of the Local Democracy, Economic Development and Construction Act 2009. I note with some wry amusement that the noble Lord, Lord Beecham, is desperately trying to hang on to this classic piece of new Labour nonsense, which frankly has not improved the situation of petitions in any council in the country. Those who take them seriously, take them seriously; those who do not, do not.

This is eight pages of primary legislation telling councils in great detail how to deal with petitions. I, along with my noble friend, pay tribute to the Minister at the time, the noble Baroness, Lady Andrews, who listened to a great deal of what we had said—it was 12 pages of nonsense before we started, and between us we managed to persuade the civil servants and the powers that be in the then Government at least to take some of it out. As I told the noble Baroness at the time, if the Government simply want to tell councils to have a scheme for dealing with petitions that deals with them seriously, they could do so in half a page of legislation, not eight pages. I have been through this and reminded myself of the huge amount of nonsense in it. I will not detain—or should I say entertain—your Lordships’ House with any more of this tonight, but it really does deserve to go.

The one point that I will raise relates to Section 16 of the 2009 Act, which is the requirement to call officers to account. I do not know how often, if ever, this has been used since this part of the Act was commenced. At the time, we had a long debate, and in our view it was totally inappropriate for officers of the council to be hauled up and held to account before the public in this way. The people who should be held to account are the elected councillors: those who run the council and who have been elected by the people to be responsible and accountable to the people. Clearly, they will need support from officers, and if officers are not performing their jobs properly, the elected councillors are the ones who should take a grip of the situation and sort it out. That is a fundamental principle, in our view, but we could not persuade the Government at the time that that was the case. I am delighted that my noble friend Lord Shutt is, I assume, going to resist this amendment.

[Lord Shutt of Greetland]

My Lords, I thank the noble Lords who have spoken on this matter. Clause 46 of the Bill repeals the duty on principal local authorities in England and Wales to have a petitions scheme and the associated provisions. Amendment 15 would omit this clause, therefore reinstating the duty, and Amendment 49 would then amend the original legislation, which the noble Lord, Lord Greaves, referred to when he mentioned the eight pages. Incidentally, I have a note that there would be still four or five pages left of that, including the requirement to call officers to account. So a lot of it would still be there.

While the intention behind the amendments to ensure that councils treat the receipt of petitions sensibly and appropriately is laudable, I am not persuaded that reinstating this prescriptive and burdensome duty, albeit in a revised form, is either necessary or desirable. The revised duty proposed would remove Section 11 of the Local Democracy, Economic Development and Construction Act 2009, which provides for principal local authorities to have petition schemes, but it is clear that they would continue to need such schemes, given that Amendment 49 includes several references to petition schemes. Even with this change, the revised duty would mean a significant new burden on local authorities. The effect of subsection (6) of the proposed new section is that the statutory petitions schemes would have to go into far more detail than is currently required about how particular categories of petition will be treated.

In addition, the extension of the statutory duty to all categories of petition—including mayoral petitions and council tax petitions—which the amendment creates, will create further additional burdens, as a scheme would then need to provide for different processes for different types of petition. To reinstate the current overly prescriptive duty not with a clean sheet but with a confused mishmash of some retained elements, with some changes and some provisions dropped, is not at all helpful. We trust local authorities to make the best choices for their local areas and to respond to residents’ concerns in a locally appropriate way. However, how that looks should be a matter for local discretion, not central prescription.

We simply do not believe that we need to reinstate this duty in order to force local authorities to have a petitions scheme, any more than we believe that we need to tell local authorities how to respond to petitions from their own residents.

The noble Lord, Lord True, asked whether the Government still support the concept of petitions. Let me make it clear that they absolutely support and encourage the use of petitions but at a local and not at a national level. It seems to me that people want to put up a petition in a post office or whatever. They do not want to have to scratch about wondering what the proper way to organise a petition is for that council. They want to get on with the petition, get the names together and get on with it. That is how it is in democracy and how it is in local areas. In the circumstances, I trust that this amendment will not be pursued.

Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Monday 10th October 2011 Lords Chamber

[Lord Shutt of Greetland]

I do not know whether I can give the noble Lord any comfort. The problem is that, on the one hand, people are asking for localism and letting the locals decide and, on the other hand, the noble Lord is saying, “Let the Secretary of State be on their back”. We cannot have it both ways. We certainly hope that people will be reasonable. For example, to have an expression of interest that is open for five minutes would not be reasonable. I should have thought that there would be other ways in localities to put a stop to that. It is as a result of our earlier debates and concerns about the Secretary of State being too prescriptive in these matters that some of these amendments have been brought forward. I should have thought that that would be appreciated by the House. But we are seeing the other view, which I know exists from time to time, that there will be recalcitrant local authorities which will not get on with things as people hope they might. I think we have moved in the right direction and, if it goes wrong and the recalcitrant authorities become a multitude, clearly something would have to be done, but perhaps we ought to trust local people and local authorities.

[Lord Greaves]

I take it that that was not the Minister’s reply to the debate. I have three brief points to make. We are moving on to the community right to challenge, and some of us have found it quite difficult to understand how it will work and how some of the problems which might result will be overcome. I thank the Bill team for their time and patience in explaining exactly how they see it working and being fairly honest about some of the difficulties which might exist. This is a difficult part of the Bill and it is one which, when it is enacted, as no doubt it will be, will need a careful eye kept on it. I cannot say that we have not had an immense amount of co-operation in trying to thrash it out.

I very much support Amendments 197B and 197E to 197G on the timing issues. Those are clearly a result of responding to the public consultation, but also to the discussions in Committee. I do not share the worries of the noble Lord, Lord Lucas, about the timing issues. The way in which the timing issues are now presented in the Bill is much better and leaves a great deal of initiative to local authorities. It is much better than the existing wording which leaves it all to the Secretary of State to lay down rules and regulations. I wish that the Government had been more flexible on similar matters in the 100 or so areas in the Bill that we can point to as giving excessive powers to the Secretary of State. In this instance, the Government have listened and we welcome that.

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[Lord Greaves]

Before the Minister sits down, and without wishing to pre-empt the noble Lord, Lord Beecham, is that an indication that there might be some tidying up to be done at Third Reading, and that that issue therefore could be considered then?

[Lord Shutt of Greetland]

If we can do this by writing a letter and giving comfort in that way, it will be done that way. If, ultimately, it really were needed, we would indeed have to come back to it at Third Reading.

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[Lord Shutt of Greetland]

It is extremely unlikely that the noble Lord will get it as quickly as that, but I believe that it will be available before 31 March.

[Lord Greaves]

Before my noble friend sits down and before I stand up, perhaps I may ask a question which has just occurred to me. If a service—for example, the refuse and recycling service—goes out to a contract and it is for well over £156,000, will an existing in-house provider be able to take part in that tendering exercise and compete against outside contractors in exactly the same way as it would under the old compulsory competitive tendering system or under the system in which councils sometimes put out a contract to test the market against their own in-house provision? Under the community right to challenge, if a contract goes out to tender like that, will the in-house provider still be allowed to take part in the exercise or will it be doomed?

[Lord Shutt of Greetland]

I may need to think about that and write to my noble friend. However, it seems to me that the in-house provider here could be the “two or more employees”. Those in-house people whom my noble friend speaks of would be the group of workers. That is how I think it would be done but, if I am wrong about that, I shall let him know. It seems to me that that is how the challenge would be used. However, if my noble friend is talking about procurement and there is an existing body, I do not see any circumstances in which that existing body will not be able to participate in the procurement exercise. I hope that that is helpful.

[Lord Greaves]

My Lords, I am grateful for that. I realise that my noble friend has not had a chance to think about that question but I think that the issue of “two or more employees” is totally irrelevant in this case. We are talking about a challenge made by an outside body or organisation. The contract is put out to general tender and there is not a two-person or six-person challenge from inside the organisation. There is an existing department full of staff who are currently working for the council and who may or may not be able to take part in the competitive tendering exercise. The more I think about this, the more it seems to be a crucial point, and it would be very helpful if the Minister could come back to us on it. This is a very new point and perhaps some clarification of it at Third Reading, if only to put the Government’s view on it on the record, would be extremely helpful. I hope that that will happen.

There are times when I listen to Ministers reading out their briefing when I think, “If that is the best they can do, I must be on to a good point”. The attempt to rubbish my amendment concerning a service review by suggesting that it would involve consulting every single resident, which would not be possible, was really rather derisory. I do not blame my noble friend for that; he has his briefing to read out. Councils and other bodies consult users of services all the time and they know how to do it. It is not difficult and you do not have to be absolutely certain that you have consulted every single resident. You put out a consultation by whatever means are reasonable. It might be through the internet, leaflets, articles in local newspapers or whatever. Therefore, I thought that that response was a bit pathetic.

The Trojan horse argument is important but the real problem arises when that Trojan horse is accidental. If you get a community that is really keen on taking over a service and it has real local support but the contract has to go out to tender and the community cannot possibly match what an outside commercial organisation can provide in terms of cost, then that community is not going to be very pleased. It is going to say, “We challenged and these people from outside who have come in to make a profit have stolen our services away from us”. They might well have preferred the service to stay with the council rather than for that to happen. That kind of scenario will simply lose public support. It is not about rights for communities, it is about communities potentially being set up to provide rights for the commercial challenges from outside. The advice to councils is going to be absolutely vital. It has got to be clear, it has got to be strong and it has got to provide councils with all the safeguards they need—not to stop communities challenging and taking services over—but to stop it being abused.

Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Tuesday 19th July 2011 Lords Chamber

[Lord Greaves]

Before the noble Lord does so—this is a slightly cheeky intervention—my noble friend said that the Government did not believe in telling people in great detail how to carry out consultation because they were not experts on it and because it is a fast- moving area. Why do they, therefore, in so many parts of the Bill take a very different view when it comes to consultation by local authorities?

[Lord Shutt of Greetland]

My Lords, I have to say that during discussion on the Bill, noble Lords are constantly saying that the Government are being too prescriptive, on the one hand; or, on the other hand, that the Government need regulations or some backstop somewhere. It seems to me that there is balance in all things. What I have read out is the balance perceived at this point. This is Committee, so, as always, the comments of noble Lords will be taken into account.

Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Tuesday 5th July 2011 Lords Chamber

[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.

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[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.

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[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?

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[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?

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[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.

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[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.

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[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.

Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Tuesday 5th July 2011 Lords Chamber

[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.

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[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.

Localism Bill

Debate between Lord Shutt of Greetland and Lord Greaves

Tuesday 28th June 2011 Lords Chamber

[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.

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[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.

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[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.