Local Audit and Accountability Bill [HL]
Lord Tope Excerpts(11 years, 4 months ago)
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“( ) This section ceases to have effect after 30 April 2016.”
Lord Tope
My Lords, I have no wish to reopen, especially at this time of night, the debate on Clause 39 which was so rudely interrupted on Monday evening when we might well have concluded it. In moving the amendment, which is of course a sunset clause, I am following the wisdom of the current Secretary of State, who described sunset clauses as being:
“In line with best practice on public policy”,
because they limit,
“changes to three years and a review of the benefits from the policy at that point”.—[Official Report, Commons, 24/1/13; col. 17WS.]
I am sure that those of us who worked so assiduously on the Growth and Infrastructure Bill will remember those wise words from the Secretary of State, and that is the effect of this amendment.
The LGA would like to see the removal of the clause altogether because it believes that it is,
“a significant threat to both local government’s financial stability and infrastructure investment”.
On the other hand, the noble Lord, Lord Beecham, when he spoke earlier on Report, wanted the clause removed, or at least not implemented, because he thought that the Government had overreacted to what he described as,
“a pretty small problem in terms of the number of authorities and the cash affected”.—[Official Report, 15/7/13; col. 607.]
Time will tell who is right, and that is the purpose of the amendment. The Government are clearly unwilling to remove the clause altogether, so if it has the unforeseen and negative consequences that some fear, it could be removed without the need for primary legislation. As the Secretary of State has said, that accords with best practice on public policy, so I am sure that the Minister will be keen to accept this amendment. I beg to move.
Lord Beecham
My Lords, the sun has already set; none of us wants to be here when it rises in the morning. I concur with the amendment moved by the noble Lord and I trust that the Minister will accept it.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I can be very brief. The Government cannot accept the amendment. The Government are absolutely committed to ensuring that council tax payers should have the final say on excessive increases and that the case for the inclusion of levies in the referendum legislation is compelling. The Government intend that, once made, the change to the legislation should remain on the statute book and that council tax payers should be protected from excessive increases permanently—not just for a few years. Local authorities and levying bodies would not appreciate the prospect of further change to legislation in three years’ time.
It may be helpful to the noble Lord if I also mention a major practical issue raised by the amendment. In 2016, as in all years, local authorities must set their council tax by 11 March. Any authority triggering a referendum must begin preparations almost immediately, so the referendum will be scheduled for the first Thursday in May 2016. The sunset clause would take effect on 30 April 2016, right in the middle of local authorities’ preparations to hold a referendum. Furthermore, if the amendment is accepted, by that time, the provision would have disappeared from the statute book and rendered regulations relating to the conduct of the referendum and its effect in direct conflict with the legislation on which they are based. That is because they would be based on the definition of the relevant basic amount of council tax, including rather than excluding levies. That would be a recipe for confusion and would not be fair on local authorities or council tax payers. So, for reasons of principle and practicality, the Government are unable to support the amendment, and I hope that the noble Lord is willing to withdraw it.
Lord Tope
My Lords, I am very grateful to the Minister. I confess to a little disappointment about that reply, although I wonder whether I should see some encouragement. If the only defect in the amendment is a technical one on timing, perhaps the principle could be accepted. I look forward to that being pursued in another place at another time. In the mean time, I beg leave to withdraw the amendment.
“Local authority publicity requirements
(1) Any requirement for a local authority to publish a notice in a newspaper shall cease to have effect.
(2) Instead, the local authority shall publish the notice in question in such way as the local authority thinks is likely to bring it to the attention of the greatest number of people in the area most concerned.”
Lord Tope
My Lords, I will take a little longer on this amendment as we return to the subject of statutory notices. The amendment is simple, clear and straightforward. It would remove the requirement to publish statutory notices in local newspapers, but it would require local authorities still to publish those notices in such a way as is likely to bring them to the attention of the greatest number of people in the area most concerned.
The arguments for the amendment were well rehearsed at Second Reading and in Grand Committee. We know that the legislation dates from 40 years ago, in 1972, which was a very different world. I think that there is common agreement that the publication of a statutory notice, often in small print and in an impenetrable form, in the middle or back pages of a local paper is, arguably, the least effective means of communication. Those arguments were well rehearsed in Grand Committee and I shall not repeat them all today. What were much less well rehearsed were any arguments against the actual amendment. Instead, noble Lords made perfectly valid points with which I agreed but which had nothing to do with the purpose of the amendment. Let me begin by being clear what the amendment does not do. It does not remove or weaken in any way the requirement on local authorities to publish statutory notices. Indeed, I would argue that it strengthens that requirement, because it requires them to publish them in a way most likely to reach the greatest number of people in an area, which a statutory notice in a local newspaper certainly does not do. Nor does it make any changes to the 163 enactments, which I listed in another amendment, that require publication of a statutory notice. I happen to agree with the noble Lord, Lord Beecham, when he said that a cull of those enactments is probably overdue, but that is not part of the amendment. It can, and I hope will, happen anyway.
I agree with noble Lords who said that not everyone looks at the local authority website or even uses the web at all. The amendment deliberately does not specify how statutory publication should be done, only that it should be done in the best way. In some areas, and in some circumstances, that may well be through the local newspaper.
All speakers in Grand Committee agreed that the requirement to publish in a local newspaper came from a very different age. Communication methods have changed hugely in the intervening 40 years. So have local newspapers themselves. There are fewer of them, they are generally less well-read and, as the noble Lord, Lord Beecham, graphically illustrated in a previous debate earlier on Report, the coverage of local government by local newspapers has also changed. It is a fast-changing world, not least in the field of mass communication. It would be wrong now for government to specify how statutory notices should be published. That would be likely to be out of date even before it was enacted, let alone in 40 years’ time. It would also not be in keeping with the spirit of localism. There are very different circumstances in different areas. Some are fortunate enough to have a well-read daily local newspaper; some still have widely read and paid for weekly newspapers; and some have weekly free sheets that may reach a greater proportion of the local population. But many areas now have none of those things. Not all statutory notices are appropriate to a whole council area. Publication of some can be much better targeted at the particular area to which they relate. These are all reasons why I believe that, while the statutory requirement to publish these public notices must remain, the decision on the most effective way to communicate them should be with the local authority and not enshrined in statute.
The LGA estimates that last year local authorities spent £26 million on the publication of statutory notices in local newspapers as well as a further £17 million voluntarily on general advertising. This was really the only argument put forward against the purpose of the amendment; that local newspapers are in difficulty because of the changes in communication and that therefore local authorities should continue to be required by law, not by choice, to subsidise them through the publication of statutory notices. I do not think anyone regards that as a tenable argument at any time, but it is certainly not one in the face of the severe budget pressures on all local authorities now. Many local authorities, including my own, have good and positive partnerships with the local press that are of mutual benefit and that is surely the route down which we should all be encouraged to go.
Although the Minister gave no indication of this in her reply in Grand Committee, the Government seem to be persuaded by these arguments. The Local Government Chronicle reported last week that the Secretary of State told Conservative councillors that he,
“pledged to let councils publish statutory notices online in the next two years”.
It then reported that the DCLG issued a statement that did not confirm or deny Mr Pickles’ comments. Instead it quoted the Minister, Brandon Lewis, as saying that,
“commercial newspapers should expect over time less state advertising as more information is syndicated online by local authorities for free. The flipside is the free press should not face state unfair competition from town hall newspapers and municipal propaganda dressed up as local reporting”.
This Bill legislates for one side of the quid pro quo. My amendment deals with the flip-side, to use the Minister’s expression. It needs to be in the Bill before it is enacted. Will the Minister tells us in her reply whether it is the Government's intention that the current requirement to publish all statutory notices in newspapers should be ended? If that is the Government’s intention, what is the timescale? Is it the two years that the Secretary of State has referred to? If that is not the intention, how do they intend to give effect to Brandon Lewis’s statement? Assuming that it is the Government’s intention, as I hope and believe it is, will the Minister tell us how and when the Government expect to remove or at least change the current legislative requirement?
Within two years clearly means in the lifetime of this Government. Surely the Government are not intending to legislate separately for this in the last few months before a general election. While it would be wonderful if this amendment was accepted today, I expect to be neither surprised nor disappointed if it is not. I made clear in Grand Committee that what I am seeking is a clear commitment from the Government that they will use this Bill to give legislative effect to whatever change they propose to take effect within the next two years.
Given the reported comments of the Secretary of State since Grand Committee and the renewed interest in and speculation about the Government’s intentions, I hope that the Minister will make the position clear beyond any doubt in her reply today. I beg to move.
Baroness Hanham
My Lords, I thank noble Lords for those rather contrary views. Only three people have spoken, and their views were all different, so that is a pretty good start and leaves me with a fine path through.
The purpose of a statutory notice, as everybody clearly knows, is to inform the public about decisions that affect their lives, their property and their amenity. That is especially the case for issues where the public have a limited period in which to respond.
The Committee was in broad agreement that notices should be easily available for local people and that they are vital for local transparency and accountability. The noble Lord has highlighted the cost of statutory notices and suggested that local newspapers are one of the least effective ways to convey information to people. We do not agree. Research by GfK for the Newspaper Society found that the reach of local newspapers was much greater than council websites: 67% of the respondents to that survey had read or looked at their local newspaper for at least a couple of minutes within the past seven days, compared with 9% who had viewed their council website. Some 34% of adults questioned had not accessed the internet at all in the last 12 months.
The most recent internet access quarterly update from the Office for National Statistics, published in May, shows that 7.1 million adults in the United Kingdom—14% of the population—have never used the internet. Two-thirds of over-75s, a third of 65 to 74 year-olds and 32% of disabled people, as defined by the Disability Discrimination Act, have never used the internet. There are quite a lot of people, therefore, who do not, would not and could not use the internet for these notices.
The GfK research for the Newspaper Society showed that local papers are spontaneously cited as the way in which most people—that is, 39%—expect to be informed about traffic changes, for example. My noble friend Lord Shipley will be interested to know that the next placed source of information is street signs, at 26%—they come immediately to notice. When prompted, 79% of all adults responding said that they expect to be made aware of traffic changes in their printed local paper, second only to street signs and ahead of any other communication channels.
Undoubtedly, the requirement to publish some notices in newspapers comes from an age when there was no access to other means of communication. Under present conditions it could perhaps be removed, but the requirement to ensure that these notices are available easily remains as valid today as it always has.
As I said in Committee, the last Administration consulted in 2009 on removing the statutory requirements to publish planning notices in newspapers and found that that was not well received, as noble Lords opposite will remember. Some 40% of respondents to that survey were against the proposals, with a further 20% giving only qualified support. I acknowledge, of course, that that was four years ago. Things have moved on a bit. However, the party opposite concluded that some members of the public and community groups relied on the statutory notices in newspapers, and was not convinced that good alternative arrangements could readily be rolled out. A recent debate in the other place on alcohol licensing notices showed the strength of cross-party feeling against repealing the requirement to publish the notices in newspapers.
In Committee, the noble Lord, Lord Beecham, said that statutory advertising should not go altogether—I think he repeated that today—and that it was more a question of which statutory notices should be reformed and which should continue to be advertised in newspapers. That can already be done, because departments can put forward particular statutory notices for consideration under the Red Tape Challenge, and that provides opportunities to review a statutory notice. The amendment gives little consideration to which statutory notices are important to local people or where there is a case for retaining publication in a newspaper, and that of course would have to be looked into.
In the internet age, it is clear that commercial newspapers should expect less state advertising over time, as my honourable friend Brandon Lewis has made clear, as more information is syndicated for free online. We accept that newspapers need to develop new business models rather than relying on revenue from statutory notices. However, the newspaper industry is very clear that competition with local authority newspapers, for example, can be damaging.
It would be unfair to remove statutory notices in the blanket way that is being proposed while independent newspapers still face unfair competition from local authority newspapers. We must stop this first before looking at other issues. We acknowledge that the DCLG Select Committee’s recommendations a couple of years ago for a review of publication requirements of statutory notices cannot be ignored in the long term.
I hope that with those explanations the noble Lord will be happy to withdraw his amendment.
Lord Tope
Before the Minister sits down, I ask her to comment, as she seems to have forgotten to do so, on the reported comments of the Secretary of State that this requirement will be phased out within two years. He was quoted as saying this by I think three or four Conservative councillors separately, while Brandon Lewis, the Minister, has similarly indicated that the Government intend to change the statutory requirement as a quid pro quo for the legislation that we are in the process of passing. Can the Minister not end this uncertainty now and give us some certainty on what the Government’s intentions are and when they are going to be implemented?
Baroness Eaton
My Lords, I apologise for not being here at the beginning of the debate. An issue that concerns me about statutory notices being advertised in newspapers is that in some of our larger cities there are large communities that have no language to read a local newspaper. It can be very helpful when the council passes out information in appropriate languages, and I do not think that any of the debate we have had so far has given any indication of how this is to be communicated to very large sections of larger cities’ communities.
Lord Tope
I am grateful to my noble friend Lord Shipley for supporting my amendment. I remain not entirely clear whether or not the noble Lord, Lord Beecham, was supporting it because once again he avoided the issue. He indicates that he does not support it. He called for a cull of the requirements; I said in my introduction that I have much sympathy with that, but, again, it is not the purpose or the point of this amendment.
The Minister answered—I think speaking on behalf of the Newspaper Society—in terms of more people getting their information from the news reporting in local newspapers. The issue is not about whether local newspapers report the news and provide information more adequately or more fully than council websites. It is not about local newspapers, it is about statutory notices published in them. That is very different from news stories that appear on the news pages of a local newspaper. Again, we are avoiding the issue.
I understand and accept that the Minister is not in a position tonight to make the definitive statement that I think everybody now wants. Whatever side of the argument they are on, everybody wants that definitive statement. I accept that the Minister cannot make it but the Government cannot go on simply avoiding the question. They cannot go on as they have done for several years—almost since they were elected—saying that this is under review; at some point that decision has to be made.
The Local Government Chronicle reported a number of Conservative councillors saying separately that the Secretary of State had said this. The DCLG in its statement neither confirmed nor denied it—most of us would accept that that is as near to a confirmation as you are ever going to get. Before long, and certainly before this Bill finishes its passage through the other place, the Government are going to have to state their intention. They are going to have to give a timescale and say how and when they will legislate to amend the 1972 provision. That is clearly not going to happen tonight. I am sad and sorry about that but I have no choice but to withdraw the amendment.
Local Audit and Accountability Bill [HL]
Lord Tope Excerpts(11 years, 4 months ago)
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Lord Tope
My Lords, I shall also speak to Amendments 28, 30, 33, 35, 36 and 37. Before doing so, I must, for the first time in your Lordships’ House, declare my interest as a vice-president of the Local Government Association, now for very nearly two weeks. It gives me great pleasure to do so, and to begin by not doing what the LGA will not wish me to do. The LGA remains resolutely opposed to Clause 38; we will have an opportunity very shortly to look at that. The preferred position of the LGA—and, I think I am right in saying, of all the political groups in that body; it most certainly is the position of my own Liberal Democrat group there—is that it would prefer to see the deletion of the clause entirely.
I have tabled this collection of amendments because I recognise that the Government will not be able to agree to do so because the terms of the coalition agreement state:
“We will impose tougher rules to stop unfair competition by local authority newspapers”.
That is what is in the coalition agreement, and the Bill is the vehicle that the Government have chosen to implement that part of the agreement. I accept that I, too, am bound by that agreement. My clutch of amendments is therefore an attempt to meet the terms of the agreement which I personally signed up to, as did my party. However, it is targeted, rather than the broad-brush approach that the Government seem to have at present.
The problem with Clause 38 is that it is rather more than a catch-all, although it does apply to all local authorities. It gives the Secretary of State power to intervene, regardless of whether the local authority is complying with the code or not. That is not in accordance with the coalition agreement which is quite specific about dealing with unfair competition. In reality, it means that those authorities—if there is more than one—which are producing a weekly newspaper, paid for by commercial advertising that arguably might have gone to a local commercial newspaper, are in competition with that local newspaper. That part of the agreement attempts to give some protection to local newspapers going through a difficult—probably terminal—period. Whether that is a correct analysis of the situation for local newspapers—and it certainly is not a complete analysis, nor is it a subject for debate today—that is the position we are in.
Amendments 25 and 28 seek to limit the rather wide-ranging power that the clause currently gives to the Secretary of State and to target it on those authorities deemed to be in breach of what is, at the moment, a voluntary code. That gives the Secretary of State the power—which he feels is insufficient at the moment—to deal with a real problem and not just the threat of a possible problem. We all accept—and the Minister has said many times that she accepts—that the overwhelming majority of local authorities, regardless of their political complexion, are complying with the code, have shown no signs of not doing so and are certainly not coming under the terms of the coalition agreement.
Amendment 25 and Amendment 28 are the targeted approach. Amendment 30 and Amendment 36 simply extend the period in which the Secretary of State has to give notice of a direction from a very short 14 days, which includes non-working as well as working days, to 28 days. This is in accordance with best practice; it is certainly in accordance with common practice. It gives a local authority a reasonable, though not a long, time to make its case if it feels that the direction is misplaced—as any local authority in that position is very likely to do; otherwise it would not have put itself in that position in the first place.
Amendment 33 and Amendment 35 state the method by which the Secretary of State has to inform an authority. At the moment the clause is silent on how this is to happen. I have a horror that it is likely to be done via a press release from the Secretary of State—something for which he is quite well known. The first the local authority might know of the fact that it is the target would be if it were to receive something through the media in the language that the current Secretary of State is renowned for using. So these amendments state how the Secretary of State must issue that direction.
Baroness Hanham
My Lords, I am probably in danger of saying the same thing three times as there is no doubt that these amendments stray into each other. We have heard some pretty wide comments on the code as it stands, which probably go slightly wider than the intention behind the noble Lord’s amendments. None the less, we should be very clear that we are talking about the publicity code. I think that guidance is given to local authorities on seven aspects of the publicity code, their behaviour in relation to it and what it involves. It is a statutory code but compliance is voluntary at the moment. If the Secretary of State had to intervene, it would become mandatory only as regards the aspects on which he gave directions, if that was done across the board. If the Secretary of State gave an individual direction, that would be mandatory only for the relevant local authority. This is not a case of putting the whole code on a mandatory basis but of directing local authorities where they are seriously breaching the current code. We are interested only in those local authorities—and there are some—which are giving rise to concern about their publicity because they are producing far too many weekly or fortnightly publications—the terms of the code are three monthly—or are going beyond the reaches of propaganda or stepping outside what they should be doing and producing publicity which is too political. Those are the areas we are dealing with. As I have said several times, I totally accept that the majority of local authorities comply with the code without thinking about it. It is part of their lives, as it were, and they do not set out to breach it. However, some do and this Bill gives us an opportunity to make sure that they are put under some constraint.
Amendment 25 would require the Secretary of State to be satisfied that a local authority had failed to comply with the code under Section 4. The amendment is not necessary and inappropriate. It would needlessly complicate and risk delaying the exercise of the power of direction, which, as I have explained, needs to be quick. Having the making of a direction formally conditional on this simply opens the door to even more debate, argument and delay. That is not compatible with our aim of rapid, targeted action.
Amendment 28 would remove the power for the Secretary of State to give a direction to an authority whether or not he thinks that authority is complying with the code to which it relates. This would remove the Secretary of State’s power to issue a direction where there was doubt over compliance with the code in the future. It is right, when legislating for a new provision, to ensure that as far as possible the provisions cater for different eventualities so that you do not have to keep coming back to the various aspects but cover them so that they do not need to be followed up.
Amendment 30 would lengthen the period a local authority might continue not to comply with the publicity code. The noble Earl, Lord Lytton, agreed with my noble friend Lord Tope that the 14-day period was too short. Local authorities will know perfectly well when they are breaching the publicity code, so a two-week notice period is perfectly reasonable under those circumstances. The notice must be given in writing. A text message or an e-mail will not do. A formal notification must be given, marking the start of the 14 days’ notice. I am sure that the local authority concerned would have plenty of time to raise its concerns.
I return to the important point made by the noble Lord, Lord Beecham, on the form of the code. The Secretary of State cannot just change the code any old how. Any changes to the code would have to be approved by both Houses of Parliament, and any revision to it can be made only through the negative resolution procedure, so it would have to come before this House. The noble Lord shakes his head but a negative resolution can be turned into a proper debate in this House, as he knows as well as I do. The revision must be laid in draft before each House of Parliament and cannot be laid until after 40 days. This is the norm. If you laid the changes before 40 days, the noble Lord, Lord Beecham, who keeps an eye on these things, would leap on it after day three. If either House votes against the proposed change, it cannot go ahead. I think that is more or less the situation with any such proposal.
Amendment 35 is similar to the amendment on the notification. I think it is intended to require the Secretary of State to write to individual local authorities—I have already indicated that he will—modifying or withdrawing a direction. Any notification between the Secretary of State and a local authority would have to be in writing.
Our amendment, which makes provision that the exercise of the power by the Secretary of State to ensure compliance with the code in relation to all local authorities in England of a specified description, or to all local authorities in England, should be made by an affirmative statutory instrument, removes the need for these amendments. It would be highly unusual for an order-making power to be subject to a requirement for the Secretary of State to bring it to the attention of relevant authorities. To make special provision for the publicity code in this instance would bring confusion to other order-making powers, and is unnecessary.
Amendment 36 would build on Amendment 30 which, as I have said, would lengthen the period a local authority might continue not to comply with the publicity code. For the reasons I have set out and because we wish to move swiftly where there is an abuse of taxpayers’ money, I see no reason to extend the 14-day period.
Finally, Amendment 37 would require that a direction must take into account whether the authority has demonstrated to the external auditor that acting outside the code is in the financial interests of the authority to whom a possible direction may apply. This amendment would, I am afraid, once again delay the process. Local authorities know when they are spending too much money. In some circumstances, local authorities can act outside the code and issue notices, leaflets and newsletters as long as they are straightforward. I think that we will discuss that later.
This is also unnecessary. The provisions already allow local authorities to make representations before a direction is made requiring them to comply with the code. The 14 days does give them an opportunity to comply. Those representations could include a view from the auditor if the local authority wants it, but we would not require it. Taken as a whole, we do not consider the amendments necessary. I do not suppose that the noble Lord will be entirely reassured by what I have said but we have other amendments and we will no doubt consider them even further. I hope that from what I have said so far, the noble Lord will be happy to withdraw his amendment.
Lord Tope
My Lords, I am grateful to the noble Earl, Lord Lytton, for clearly supporting my amendments and putting his name to them. I am not entirely clear whether the noble Lord, Lord Beecham, was supporting them, grudgingly or not, but I am grateful to him for at least recognising my high wire act. I shall endeavour to remain on the wire. I am grateful to the Minister for at least a detailed reply on the amendments. To say that I am disappointed would imply that I had higher expectations in the first place. I am sad to say that I probably did not.
I was surprised at the Minister’s dismissal of the issue of the 14 days to 28 days notice, as 28 days is normal, good practice. It is hard to understand what is to be of such urgency that it can be dealt with under the 14-day notice but is so urgent that it cannot be dealt with in 28 days. I am surprised more than disappointed. The Minister will know that these provisions are causing widespread alarm, much of which I believe to be understandable but misplaced. I hope that in her further replies, which she herself said she will have to make, she will give greater reassurance on a number of the examples that I gave in moving the amendment—whether they are of the more standard publicity-type notices that local authorities issue, such as bank holiday recycling arrangements or notices about public health, or the rather more difficult ones concerning the third runway or HS2. I hope that we can get some reassurance on that.
A great majority of authorities cope within the voluntary code but we know that most local authorities are risk averse. They need to be and should be risk averse. They are advised by lawyers who are by nature risk averse. I fear that the consequences of what we are doing here will be far greater than even the Secretary of State intends. We will continue with this issue. I am quite certain that it will continue throughout the passage of the Bill. I hope that the Government will be willing not to dig in their heels but to look at how they can better and more specifically achieve their objectives than is currently the case. I beg leave to withdraw the amendment.
Local Audit and Accountability Bill [HL]
Lord Tope Excerpts(11 years, 4 months ago)
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The Earl of Lytton
My Lords, this amendment returns to an issue that was flagged up by more than one noble Lord at Second Reading—the question of mission creep.
One of the problems of local democracy is the perception that there is very little for the elector to influence beyond which party happens to rule the roost. The process of localism—and indeed the fruits of the Government’s initiatives on this—must surely be to redress this balance. That means having current, live and important issues, including matters of expenditure, at stake in local elections. I will return to this subject in respect of Clause 39, so I will leave it for the moment.
If the role of the National Audit Office is allowed to expand, as would be possible under this Bill, the question that the Local Government Association has asked—indeed, this amendment comes with its imprimatur—is: what is left for the voter to determine? Democracy and democratic accountability are clearly in point here.
The Local Government Association’s second question is: what is there to prevent the National Audit Office effectively replicating the investigative adventurism— my words, not those of the Local Government Association—of the Audit Commission? On our first day in Committee, the Minister said that a recreation of the Audit Commission by the back door is to be avoided and I entirely understand that. Just so, the recreation of its functions by an expansion of the National Audit Office is equally to be guarded against.
Amendment 18ZA would restrict the role of the National Audit Office to prevent this mission creep and the potential erosion of the proper function and role of local democracy. Its scrutiny would therefore apply to expenditure, principally that from central government. I will speak also to Amendment 18ZB, but on the detail of Amendment 18ZA I can see that the Minister may feel that this is too wide a get-out clause. However, if he could indicate whether the principle might be acceptable, I dare say that we could talk about the detail of the wording and how we can deal with that as the Bill proceeds.
Amendment 18ZB has been tabled, of course, to prevent mission creep, to which I have referred. It seems that the Bill effectively risks reintroducing some of the intrusive and costly activities that the abolition of the Audit Commission was supposed to have removed. Looking at the overall geometry, as the LGA would put it, the role of the National Audit Office would be restricted to evaluating expenditure that has a majority of its funding from the central government grant. It goes on to say that the NAO should be precluded from replicating the activities of the Audit Commission under its previous assessment and inspection regime.
I will leave it there. I dare say that the noble Lord, Lord Tope, may have some comments to make, as will other noble Lords. I beg to move.
Lord Tope
My Lords, I am grateful to the noble Earl, Lord Lytton, for moving his amendment, to which I have added my name. I endorse all that he said and, in deference to the Grand Committee, I will not repeat it; I will simply add a number of points.
The amendments of course come at the instigation of the Local Government Association, but reflect fairly widespread concern, based upon experience with the Audit Commission, about what is termed “mission creep”. Most, or perhaps all, of us would agree that the Audit Commission started very well. It did some very good work and continued to do so, but its mission and role expanded to such an extent that the Government, without too much objection elsewhere, have determined that it has now reached the end of its useful life. There is concern, whether well founded or not only time will tell, that the same experience could come to the National Audit Office—that having now got the limited role that was intended, over time, just as with the Audit Commission, the mission will expand.
I have had a useful briefing from the National Audit Office. It was mostly factual and very reassuring. Paragraph 2 states:
“The NAO considers that any future responsibilities it takes on within the Government’s new framework for local public audit should … align with the NAO’s core role of providing assurance to Parliament and holding Government to account over its use of resources”.
That is the intention behind Amendment 18ZA: to try to give effect to that. It may not be the best way of doing so; I do not know. However, the intention is there to say that if the NAO’s role is to Parliament in respect of the use of government resources, then those resources which are raised locally—which in some authorities are considerable; it varies—are outside the core role of the NAO as defined by Parliament and repeated by the NAO itself.
“Local authority publicity requirements
(1) The enactments set out in Schedule (Local authority publicity requirements) shall have effect as follows.
(2) Any requirement for a local authority (in whatever capacity) to publish a notice, an advertisement or any other matter in a newspaper shall cease to have effect.
(3) Instead, the local authority shall publish the notice, advertisement or other matter in question in such a manner as the local authority thinks is likely to bring it to the attention of persons who live in its area.
(4) The Secretary of State may be regulations amend Schedule (Local authority publicity requirements) by adding or removing enactments.
(5) In this section, “local authority” means—
(a) a county council in England or Wales,(b) a district council,(c) a London borough council,(d) the Common Council of the City of London in its capacity as a local authority,(e) a county borough council in Wales,(f) the Council of the Isles of Scilly,(g) a parish council, or(h) a community council.”
Lord Tope
My Lords, in moving Amendment 19B I shall also speak to Amendment 19E, which must be the longest amendment I have ever tabled in 19 years in your Lordships’ House.
Amendment 19B would remove the statutory requirement to publish certain notices in the local press, and Amendment 19E, which runs to nine pages, lists the 163 enactments that require publication of statutory notices in the local press. I am grateful, I assume, to the Local Government Association for that list of 163—it certainly was not my homework. Subsection (2) of the proposed new clause would remove the statutory requirement to publish in a newspaper. Subsection (3) still requires a local authority to,
“publish the notice, advertisement or other matter in question in such a manner as the local authority thinks is likely to bring it to the attention of persons who live in its area”.
The requirement to publish statutory notices in the local newspaper was introduced in 1972. We lived in a completely different world 40 years ago where we would not have envisaged the enormous changes in communication and media opportunities that have taken place over that time. In 1972 a statutory notice in a well-read local newspaper quite probably was the most effective way of communicating with residents. In 2013, I would suggest that a frankly rather boring, hard-to-read notice published somewhere in the middle and back pages of, perhaps sadly, a much less well-read local newspaper, is the least effective way of all the opportunities now available to communicate any information to anybody, whether they be local residents or people with professional or organisational interests.
It is high time for us to remove that statutory requirement, something which has long been championed by local government. Indeed, a survey by the Local Government Association indicated that 84% of councils believe that there are less expensive and/or more effective ways to disseminate information contained in public notices. The only surprise to me is that 16% of authorities apparently do not share that view, although I suspect that they might be in the “did not respond “or “do not know” categories.
I have yet to meet members of the public who regularly look for and read statutory notices in the local newspaper. I will leave for another day the question of how widely read and circulated local newspapers now are, certainly in London, and how wide their reach is. Again, the Local Government Association’s survey suggests that in 54% of council areas—not London in particular, but council areas generally—local newspapers reach less than 40% of the population. Of that 40%, very few will be reading statutory notices. If this amendment were enacted, it would still of course be possible for a local authority to place a public notice in a local newspaper if it wished to. It may on occasion think that that is a desirable thing to do, but it would no longer be a statutory requirement.
We all know the considerable financial pressure facing local authorities, which is no doubt increased with today’s announcements. However, local authorities have spent a little over £26 million in the past year paying local newspapers for the cost not of general advertising but of statutory notices. They pay another £17 million, voluntarily and entirely properly, for general advertising. That is something that they can do of their own volition, but the £26 million is something that they are required to do by the 163 statutory enactments listed in Amendment 19E. I can think of little greater waste of money. I have said earlier that statutory notices are possibly the least effective means of communication. They must certainly be the least cost-effective means of communication.
Some of this is born of the understandable concern over the demise of many local papers. The demise of the regional press is an important issue which we have debated previously; it is not really a debate for this context. However, I do not think, and I do not think that anyone else thinks, that requiring the publication of statutory notices—in effect requiring local authorities to provide a £26 million-a-year subsidy to local newspapers—is in any sense the answer to the demise of and difficulties facing local media due to the changing world of communications. That is a much bigger force than that with which we are here to deal. Continuing this requirement seems rather Canute-like, facing the incoming tide of the change in how people receive their communications, which is no longer through statutory notices.
Rather more concerning to me—and something of which I was less well aware—is the fact that the LGA survey to which I referred found that 42% of local councils are charged by their local newspapers a higher rate for public notices, which they have no choice but to publish in the local newspaper, than exists for general advertising. That is perhaps a matter between the local authority and the local media, but nearly half of local authorities in the country have found that to be the situation. There is, again, something seriously wrong there.
We raised this issue at Second Reading and the Minister kindly wrote to the noble Lord, Lord McKenzie, and sent a copy to all of us who took part in the debate. There was an interesting section headed “Statutory notice”, in which she responded to some of the points that I had made. She said that it was a contentious issue, but I am not sure that it is. It is in the sense that local authorities have long said that this is a waste of money and they do not want to do it, but whether that is contentious or agreed by 84%—but not, perhaps, by the newspaper industry for understandable reasons—may be another matter. She concluded that section of her letter with the following comments. I want to quote from it because I would like to expand her remarks. She wrote:
“This is an issue that the Government continues to take seriously and look at. The Government will continue to work with those who have an interest in the future of statutory notices to better understand the key issues and evidence. We are currently exploring the scale of current requirements placed on public bodies”—
I hope that my Amendment 19E gives some indication of the scale of the requirement—
“and other sectors to put notices in newspapers. However, the Government has no plans, at this stage, to include anything on statutory notices in the Bill. It is more important that we take time to properly consider this complex subject rather than reach rushed conclusions”.
I am not sure that we are rushing this as the matter has been under consideration for many years. However, what we have before us now is the fairly rare legislative opportunity to repeal a very outdated statutory requirement and replace it with one which better reflects the 21st century complexities of communication in a multimedia society.
I hope that before the Bill concludes its passage in the other place and perhaps returns to this place—which may well occur towards the end of this year—the Government will reach conclusions on something which is hardly a new or surprising issue and take the legislative opportunity provided by the Bill to repeal that out-of-date 1972 requirement. I beg to move.
Baroness Hanham
My Lords, happily, noble Lords have not quite agreed on this again, which is always very useful as far as I am concerned, but they have raised issues that are important and I want to acknowledge that.
The purpose of statutory notices is to inform the public about decisions that will affect their lives, their property and their amenity. There are 162 aspects they will need to be informed about but they are all relevant to local people, either individually or in groups. The amendment does not consider the effect on the public or on business and other groups, and would potentially put local people in the dark. We must acknowledge that there are still people who do not access information other than through newspapers. The local paper, where it exists, still fulfils a very public duty in that regard.
Removing statutory notices from the requirement to publish for local authorities would also stifle local transparency and the rights of local people to challenge decisions that impact upon their lives, because they would not know about them. This is a complex and contentious issue, as my letter to the noble Lord, Lord Tope, acknowledged. I do not believe there is any consensus about taking them out of local newspapers even if they cost a small amount to put in.
The burden of statutory advertising is one that we acknowledge, and the Communities and Local Government Select Committee’s recommendation a couple of years ago for a review of publication requirements for statutory notices cannot be ignored in the long term. Against this background, local newspapers remain an important part of local democracy, ensuring that local people are informed about the decisions that affect their daily lives. It is essential that local people have free and open access to information that can affect them or impinge upon them rather than having to rely on other means. I acknowledge that the requirement to publish some notices in newspapers comes from an age which has long since gone—1972 was a very different time from now—and they could perhaps be removed. However, other requirements remain as valid today as they always have been.
Looking at planning applications, there is a limited amount of time for local residents to make representations, yet applications can and do affect their and their neighbours’ quality of life and property. The previous Administration consulted in 2009 on removing the statutory requirements to publish planning notices in newspapers. It was not well received. The noble Lord, Lord McKenzie, may remember that.
The then Government concluded that it was clear from responses that some members of the public and community groups relied on the statutory notices in newspapers to learn about planning applications in their area. There was no conviction that good alternative arrangements could readily be rolled out. The effect of this amendment would therefore be to reduce public scrutiny regarding, for example, planning decisions, the provision of sex shops, bus-lane fines, casinos, betting shops and councillor allowances, among myriad others. I acknowledge that all 162 are laid out in Amendment 19E, but I have understandably mentioned a few which are important. Although some may be willing to see all these go, we would ask whether the blanket removal of a huge swathe of statutory notices is really in the public interest or ideal. That does not stop us looking at the statutory notices under initiatives such as the Red Tape Challenge, but they are currently as listed.
It is vital that we understand how local people receive and use information in the 21st century. Some make use of innovative technology, and everyone here sits with their little iPads making sure they know exactly what is going on at home when they are sitting here taking important decisions about legislation. However, not everyone is as privileged and not everybody has, or wants, easy access to technology. They like reading what they want in papers and we cannot disregard that.
It is also true that the money that pays for these statutory notices helps to keep local newspapers in existence. That is important to ensure that those who are not going to be tied up to the internet have ready access to information not only about statutory notices but about what is going on their local area. The newspaper industry is clear that competition with local authority newspapers for advertising revenue is damaging their primary source of revenue and preventing newspapers reporting on what local authorities are doing on behalf of local people.
It would be unfair to remove statutory notices in such a blanket way as proposed, particularly while independent newspapers are—as the noble Lord, Lord Tope, acknowledged—under threat and need to be kept in business. A small contribution to that is through the statutory notices, which seems a good use of public money. We would not wish to accept the amendment. With the comments I have made, and with the understanding that the coalition agreement was that we would try to protect local newspapers, I would ask the noble Lord to withdraw his amendment.
Lord Tope
My Lords, I am searching for the words in the coalition agreement which certainly comply with the amendment. I am, of course, grateful to all noble Lords who have spoken in the debate. Perhaps it was the way in which I introduced it; there seems to be some misunderstanding. There is nothing in what I am seeking, nothing in this amendment, which removes the requirement to publish statutory notices. What I am seeking to remove is the requirement to publish them in local newspapers; that is an important difference. I entirely agree, and wholly sympathise, with the view expressed by several speakers that by no means everybody accesses the web or electronic means of communications. The noble Earl, Lord Lytton, may well receive his parish notices by e-mail, but I suspect that not all in the parish study the parish e-mails. Maybe one day that will be the case, but it is not yet and I do not suggest that it should be.
This amendment would still require local authorities to publish their statutory notices, but it would require them to do so in a way that they thought likely to bring them to the attention of persons who live in the area. That could be in the local newspaper—perhaps in a better form than most statutory notices—by e-mail or on their website. Possibly the most effective way is still on a piece of paper put through the letterbox, which is still, I suspect, where many people get their information on planning applications and other matters of direct interest to their immediate vicinity. It is for the local authority to decide, depending on the circumstances of its own area, which is the most effective and cost-effective way of meeting a statutory requirement to publish public notices. Among the least effective ways is this statutory notice—with which we are all familiar but which is seldom read—published in the back pages of a newspaper.
Lord Tope
My Lords, I gave notice of my intention to oppose Clause 38 standing part of the Bill, and I did so to enable us to have a debate on what for many in local government is arguably the most contentious part of the Bill, or certainly one of the most contentious. I did not wish to try to amend the clause; I simply wanted to facilitate a debate to enable the Minister to give us the evidence that the abuse of the voluntary publicity code is sufficiently serious and widespread, and indeed is a prime cause of the threat to local newspapers, as to justify giving very considerable powers to the Secretary of State over the local publicity that councils can undertake.
I have been supplied with the wording of the coalition agreement which relates to this issue rather more than to the statutory notice one. The agreement states:
“We will impose tougher rules to stop unfair competition by local authority newspapers”.
For added value, the Liberal Democrat manifesto stated that we:
“Support a diverse regional and local media. We will help to maintain independent local sources of news and information by enabling partnerships between TV, radio and newspaper companies to reduce costs, and by limiting publicly-subsidised competition for paid advertising from local council free-sheets”.
I will leave it to the Minister to tell us what the Conservative Party’s 2010 manifesto stated, as I am sure she knows it off by heart.
As I said, I am asking the Minister for the evidence on which the Government are basing what I consider to be fairly draconian measures. I ought to say that I entirely agree with that section of the coalition agreement and, indeed, with that part of my own party’s manifesto. I believe that I am sitting next to the author of that, so I have little choice but to agree. However, I do agree. I offer no personal or political support for that tiny number of local authorities—I believe that it is a tiny number—which have gone too far in a party-political sense when publishing newspapers, magazines or other material. That criticism applies whichever party is involved or even, in one case, no party. I think that we all hold that view. However, is that abuse so widespread and general as to justify legislating to give the Secretary of State this power? I am not sure which words to use as I do not want to say, “power to control the publicity output of local authorities”, but that is where this is leading.
The measure gives the Secretary of State power to intervene even if a local authority has complied with the currently voluntary publicity code. I find that worrying. I have never believed that a small number of abuses, however wrong or undesirable or however much we all oppose them, is ever sufficient justification to legislate for everybody. However, that is what I think we are doing. I believe that the vast majority of publications, of whatever nature—magazines, newspapers, newssheets, letters from the leader—comply with the voluntary code. Of course, people may or may not agree with some of the comments but they give no cause for general concern and certainly no requirement for legislation.
Clearly, my Government take a different view so, by enabling this debate today, I am asking the Minister to give us more widespread evidence—rather than two or three perhaps misguided local authorities—that this is a problem that needs to be tackled in this way. I also wonder whether the continuing budget cuts are actually proving a far more effective restraint on local authority publications, whatever their content, than anything that we may legislate for; that may be something that we need to examine further.
I will pause now and give the Minister the opportunity to provide the evidence that many of us are seeking.
Lord Tope
My Lords, I, too, have some concerns about this clause although I am a little unsure about whether to raise these concerns on these amendments or perhaps in a few minutes in the debate on whether the clause should stand part of the Bill. However, I will deal specifically with Amendment 19BB, which deals with the issue of retrospection. The case has been well made with particular instances. I have concerns about the retrospective nature of subsection (15) on rather practical grounds. By the time this Bill is enacted, all attention will be focused on the next financial year and not the current one. For the Secretary of State, whoever that may be at that time, to be penalising authorities at that stage for acting lawfully at the time when they took the action in respect of this current financial year seems to be both wrong and impractical. Should the Secretary of State take that view, what will be the practical implications by the time we are very nearly through the current financial year? I hope that when the Minister responds in a moment she will at least be able to give us some reassurance on the particular issue of retrospection, which is causing quite proper practical concern as well as political and philosophical concern.
Baroness Hanham
My Lords, as I understand it, the noble Lord has grouped together Amendments 19BB and 19BC. Amendment 19BB challenges the Secretary of State’s power to determine categories of authority and to set excessiveness principles which apply to them accordingly. Subsection (15) makes it explicit that, in doing so, he may differentiate between authorities on the basis of past council tax decisions. The amendment would remove subsection (15) because of concerns, as raised in our discussion, about retrospection and about it providing much wider powers to the Secretary of State when setting excessiveness principles.
I am happy to confirm that subsection (15) does not apply referendum principles retrospectively. It does not make any changes to the setting of council tax in previous years or change the referendum limits that applied. The Government were clear before council tax and levies were set for 2013-14 that they would take into account the decisions taken by local authorities on council tax in setting future principles. As already stated, no changes will be made to those principles that applied in 2013-14 or, indeed, to any other year. Both authorities and levying bodies can continue to plan accordingly.
In light of the fact that local authorities have had a pretty clear indication that their decisions for 2013-14 would be taken into account—what they did, where and why—in setting future principles, there is no argument that authorities were not aware of the Government’s intentions or justification for accusations of unfairness, given the Written Ministerial Statement of 30 January 2013, followed by an information note sent to all to local authorities on 8 February. Decisions taken on council tax increases for 2013-14 were taken in full knowledge of those warnings. Subsection (15) does not radically extend the Secretary of State’s existing powers. It clarifies those powers and removes any doubt as to whether they allow him to continue to take into account past council tax decisions when making decisions on the following year.
Amendment 19BC would provide that during a transitional period specified expenditure could be exempt from inclusion within the calculation on whether a council tax increase was excessive. The noble Lord will be aware that the excessiveness principles, which are set annually, already allow for different principles to be set for different categories of authority. For this reason, I assume this amendment is intended to press the case for the additional flexibility that we have been talking about.
It is intended that the detailed excessiveness principles for 2014-15 will be made later in the year. However, the principle will remain that local taxpayers should be protected from unwanted excessive council tax increases. It is local residents who should have the final say on whether to accept an excessive increase. We recognise that there may be specific reasons as to why a particular local authority may wish to set an increase above that level; the noble Lord, Lord Beecham, referred to the city deal in Leeds, and the noble Lord, Lord Smith, referred to Manchester. The city deal with Leeds on private sector investment has been predicated on increases in levies from the West Yorkshire Integrated Transport Authority. It is right that the levy set by the 22 elected councillors from the five district councils that manage the authority should be treated in exactly the same way as the costs of every other local authority investing in local transport projects. The Government accept that neither this nor any other city deal is dependent on setting an excessive council tax increase, nor that excessive increases in levies were agreed as part of the deal. The chair of the West Yorkshire Integrated Transport Authority put it well himself. He said that,
“transport will be managed locally rather than from Whitehall, with decision making to suit local needs, accountability to Council Tax-payers and creating a transport network fit for purpose”.
Local decision-making and local accountability to council taxpayers are what the current clause would provide by extending the transparency of decisions taken by bodies funded from council tax receipts and ensuring that local residents have their say when those decisions would require larger increases. In summary, the Secretary Of State already has flexibility to set referendum principles that address particular situations and the right to take into account the 2013-14 council tax level. With those explanations, I hope that the noble Lord will be willing to withdraw his amendments.
Lord Tope
I begin by reassuring the noble Earl, Lord Lytton, that he may be in a minority of two. I share his concerns and would ask the Minister a question for clarification. Is it the case that, if a referendum on what is deemed to be an excessive levy is lost, that so-called excessive levy will still apply but the local council will have to cut its own budget in order to levy an appropriate council tax to meet the levy demand? Noble Lords opposite are saying yes; that is clearly the answer I am going to get and I want it to be clear and specific on the record. If so, we need to understand the implications of what we are doing. I can pick many examples, but flood defences might be appropriate. One can well understand where a drainage board wishes to put in a so-called excessive levy for particular work in a particular area and the public at large, who pay the council tax, may well feel that they do not want to contribute to that. As others have said, it can lead to unforeseen and undesirable consequences.
In addition to supporting the noble Earl, I also rise because my noble friend Lady Eaton is unable to be here today; she is at the Council of Europe. She has asked me to raise an issue in respect of the West Yorkshire transport fund. I will read into the record the contents of an e-mail she has received from the director of finance of the City of Bradford:
“You asked about the implications of the proposal that rises in levies, as well as Council Tax levels, could trigger a referendum.
The most significant implication for Bradford relates to current plans across the Leeds City Region to create a West Yorkshire Transport Fund. This fund is planned to grow to a total of £1bn by 2025/26 to pay for investment in the transport infrastructure. It will comprise, roughly, £150m from Dept for Transport, £100m from Local Transport Plan, £750m from the participating Councils, each of whom will contribute an increasing amount each year, by way of a levy. The current plan means that Bradford Council would put in £1.2m in Year 1, £2.4m in Year 2, £3.6m in Year 3 etc. The total investment over the period to 2025/26 from Bradford would be £161m.
It’s worth pointing out that the Transport Fund is a central plan in the Leeds City Deal, a key part of the Government's regional policy. While the Transport Fund is not the only element, it provides the underpinning infrastructure investment on which other investment activity builds.
Now, before the proposal to treat the levy by the same referendum rules as Council Tax, this plan held good. For citizens, the plan did of course mean that, while the Council Tax element of their bill would be restrained at below 2%, they would pay an increasing amount for transport investment. (And leaving aside the referendum issue, the decision to create and sustain the Fund ranks among the most significant decisions in the next budgeting rounds for participating Councils.)
The Bill’s proposal means that the Transport Fund can only be afforded in its current form if offsetting reductions are made across other services in the Council. So, by Year 3, for example, savings in other services would need to be roughly £2.4m higher than otherwise, for Bradford to afford its currently planned contribution of £3.6m in that year.
From a financial perspective, the proposal means … If investment in transport remains a priority, and the planned regional-level investment makes sense, there is now much sharper trade-off between transport and other choices. … If investment in transport has to be significantly reined in to satisfy the ‘below 2% rise’ rule, the investment returns will be significantly curtailed, with the reduced economic impact (which in turn would expect to feed through to a weaker taxation base of citizens in work and firms in business paying rates) ... For individual citizens/households, a lower aggregate taxation burden than they otherwise would face”.
That ends the quote from the director of finance at the City of Bradford, which I undertook to raise today. I hope the Minister is able to respond, if not today then later, particularly to the noble Baroness, Lady Eaton, on whose behalf I have raised this.
Lord Smith of Leigh
My Lords, I agree with the noble Earl about the problems of the electoral cycle. It was a bit disappointing that this is the fallow year for metropolitan authorities so we did not have elections. Noble Lords may recall that Wigan won the FA Cup and the feel-good factor was particularly good; obviously there have been fantastic comments on social media, but unfortunately we did not have any local elections to take advantage of that.
It was really interesting that the noble Lord, Lord Tope, read out the views of the director of finance from Bradford. The answer that the Minister gave to the earlier amendment was that, under Clause 39, the current provisions of the Localism Act, which define the relevant basic amount of council tax increase, will change from being what the council itself sets to include levies and other charges. Therefore, decisions that were entirely within the law as it stood earlier this year in March will be affected.
We had a debate earlier on the council tax referendum principle. The Government say they are not capping but actually they are. In my long experience of local government, I cannot believe that once the Secretary of State sets out the guidelines to which a referendum will apply, any local authority would want to set an amount of council tax increase above that guideline. If it does, it is on to an absolute loser. There is no way it will win a referendum on that. Which council tax payer is going to vote for higher council tax? They are not asking, “What services are being cut?”. It is a simple referendum on the increase in council tax and nobody wants it. The Secretary of State may want and need that part of it but effectively it is capping local authorities.
Capping does not always have the longer-term political impact that Governments may think. When capping was first introduced, my authority was one of the 22 Labour authorities that were all capped at once; no Conservative authorities were. We set a budget, but the Government said we could not and that we had to reset it and make significant cuts. When we came to the elections that May, we had a really big increase in our majority, so it did not have any negative political impact. I have great sympathy with the noble Earl’s position. Do we need this clause? I do not think so.
Local Audit and Accountability Bill [HL]
Lord Tope Excerpts(11 years, 5 months ago)
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Lord Tope
My Lords, I express my appreciation to the noble Lord, Lord McKenzie, for raising this issue, because I know it is one of concern. Indeed, it was one of the concerns, as I think he mentioned, expressed by the Chartered Institute of Public Finance and Accountancy, best known to us all as CIPFA. One of the concerns that it raised in its Second Reading briefing was that the wider scope of public audit has not been fully embedded in the Bill. This is perhaps an example of that. CIPFA makes the point, which those of us familiar with local government will understand very well, that public audit is a good deal wider than private sector audit. I do not think I need to labour the point. We are looking forward to the Minister’s response, which I see she is eager to give us.
Baroness Hanham
Too eager, perhaps. I say at the outset that we are absolutely clear that the auditors must be competent, appropriate and steeped in local government finance. We should start there, with that as the interest common to us all, to make sure that any changes are made in the most appropriate way so that we can be sure of getting the same high standards of auditing that taxpayers expect and to which they have been accustomed.
The Bill sets out a pretty robust regulatory regime. The National Audit Office will have to develop the underpinning code of audit practice and produce supporting guidance that will set out how auditors perform their role. What this means, essentially, is that the boards going for public audit will not change. In addition, the future local audit framework will require all auditors to be suitably qualified and competent to carry out local audits.
The Bill requires auditors to hold an appropriate qualification. This is either a qualification recognised under Part 42 of the Companies Act 2006, for a statutory audit, or another qualification recognised under this Bill. The Secretary of State will be able to make regulations setting out the minimum requirements that other qualifications will need to meet in order to be recognised for the purposes of local audit.
It is clearly crucial that local auditors are, as I have said, suitably qualified, that they attain an appropriate qualification and that that demonstrates that an individual understands, among other things, auditing standards, accounting standards and audit procedures. These standards and skills must be applied to audit assignments regardless of whether they are in the public or private sector.
However, while holding an appropriate audit qualification is necessary, it is not sufficient in itself for those individuals within firms assigned responsibility for signing audit reports of local bodies. What is important for local audit is that auditors have the skill and experience of local audit, which includes understanding the wider scope of public audit. As such, we believe that the amendment is unnecessary as the Bill requires all individuals to have this appropriate level of competence to carry out local audits, regardless of whether they hold a qualification under Part 42 of the Companies Act 2006 or another one recognised under the Bill. This critical requirement regarding competence is set out in paragraph 27 of Schedule 5. The amendment would apply only to the other qualifications recognised under the Bill, and not those recognised under Part 42 of the Companies Act.
It maybe helpful for me to outline briefly how the framework works for the companies sector and then explain how the framework for local audit will ensure that all local auditors understand the wider scope of public audit, thus removing the need for this amendment. Under the Companies Act, it is for the recognised supervisory body to set out the requirements for approving those individuals who will be responsible for signing audit reports for companies. The requirements established by the recognised supervisory bodies are subject to agreement and oversight by the Financial Reporting Council. Once an individual has been approved to sign an audit report of a company, it does not follow that they could sign such a report for any company. That individual would need to be competent to sign the audit report of the specialism of that particular company; they would need to have the relevant skills, experience and knowledge of the relevant subject matter of the company or industry in which they work.
We are replicating this framework for local audit. The recognised supervisory bodies for local audit will have responsibility for approving the individuals nominated by its member firms for signing the audit reports of local bodies. This will also be overseen by the Financial Reporting Council. Under rules that it will agree with the Financial Reporting Council, a recognised supervisory body will approve an individual to take a key responsibility in the audit of a local body only if that individual has an appropriate level of competence to carry out local audits. A firm that cannot demonstrate that a nominated person has recent experience of auditing a local body and understands the wider scope of local audit will not be considered competent and therefore cannot be approved by the recognised supervisory body.
To provide further assurance on this issue, I should also say that there are established standards and professional obligations with which firms must comply regardless of whether they are appointed to a company or a local public body. In particular, the international standard on quality control requires all firms to have policies and procedures that ensure that individuals have the right knowledge and experience to undertake a specific engagement. For local audit, this would mean that a firm could not put forward an individual to be responsible for a local audit if that individual did not understand the wider scope of public audit. If it did so, it would be in breach of its obligations and would risk breaching the terms of its registration with the recognised body.
The noble Lord, Lord Tope, raised the question of CIPFA and the discussions that have taken place. It may be helpful for noble Lords to know that I recently saw and had discussions with CIPFA about this, and it is being closely involved in discussions that are going ahead with the council, so its views are well taken into account. We recognise that it is probably one of the very few bodies with qualifications that continue to exist for auditors who will be required to do this work.
The register will be published when we see the draft regulations, which will be available at the next stage in the Commons. The register will be published in 2016, in time for the local appointment of auditors. We have discussed the question of how many firms will be able to do this, and I remember saying earlier that we hope and anticipate that smaller local firms will be able to get their staff qualified, if they do not have that qualification, so that they can bid for contracts. We expect that the smaller, new contracts will open up the market to smaller firms. We are anticipating that this will not just be the big four or the bigger four and three bidding—which I think got us to seven before—and that there will be increasing competition. We believe that there should be plenty of smaller companies available, once local authorities start to appoint their own auditors.
I hope that has picked up the points on the register and those made by CIPFA. I know that it is involved in what is going on to ensure that these regulations and qualifications are satisfactory.
Local Audit and Accountability Bill [HL]
Lord Tope Excerpts(11 years, 5 months ago)
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Baroness Eaton
I find it somewhat surprising that there is this perceived idea of auditors being too cosy with their client, a local authority, because all the probity and requirements of audit mean that they would be being professionally negligent if they did not do the job they are supposed to be doing. I really do not think that this is quite as much of an issue as the noble Lord, Lord Beecham, is suggesting.
Lord Tope
My Lords, I am struggling to understand the implications of what the noble Lord, Lord Beecham, is proposing. I think we all share his concern—I accept that it might not always be a widespread concern—that sometimes, maybe after five years, it could become too cosy. I hope we would all accept that a tendering process after five years is certainly desirable; whether it should be mandatory is something that we can debate. However, in such a tendering process, would the existing auditor be precluded from taking part in that process, or, if it was to take part in it and was clearly to submit the best value tender, would the authority then be prevented from reappointing it on that basis? That is the point I struggle to understand.
Lord Beecham
Perhaps I might respond before the Minister replies, since we are in Committee. My preference would be for exclusion but as a fallback, at the very least, to have a proper tendering process, as I have explained.
Lord McKenzie of Luton
My Lords, the procedure for the appointment of auditors provided for in Clause 8 seems overly bureaucratic, but if that is the Government’s approach, I suppose this amendment simply adds to that bureaucracy. Amendment 14ZF would require that the term of the appointment be part of the notification. Indeed, it might specifically cover the point probed by my noble friend Lord Beecham as to whether it is a reappointment.
Amendment 14ZE would require that the appointment process be set down. Transparency on this matter is for the Government, not unreasonably, of high importance, and we agree. The process will have an impact on competition and pricing, so making the interviewing process clear, assuming there was one, and what firms were involved would be an indication of the relevant authority’s commitment to these issues. It might also provide an indication of the commitment to trying to open up the market, an indicator of whether local or regional firms have been included.
Doubtless the Minister will tell us that this amendment is unnecessary and will flow from the process set down. That is fine, but it would be good to have an idea of the Government’s expectations over these areas.
Lord Tope
My Lords, the noble Lord, Lord McKenzie, began by describing this process as overly bureaucratic, but then I think he went on to say that, since it is overbureaucratic, let us have an amendment that makes it even more bureaucratic. That is not the most compelling argument that I have ever heard from the noble Lord, Lord McKenzie, as I suspect he knows very well.
The amendment certainly seems to describe what is good practice and what I hope would happen in practice. I am moderately confident that that is what would happen, certainly with any good authority. Whether we need to have an even more bureaucratic process to enshrine all this in legislation, I am very doubtful, and whichever Minister is replying they will no doubt tell us that we do not want to make it too bureaucratic.
Lord Beecham
Perhaps I may just ask whether it would remain open to authorities to combine in placing audit contracts. The Audit Commission identified substantial savings having been made by central commissioning, and it anticipated that if extended to the remaining 30% of contracts, a significant further saving of some £400 million over five years could be made. I am not necessarily saying that that is the way to go but, under the provisions of the Bill and this whole appointment process, would it still be open for such an approach to be adopted by authorities coming together, for example, in a particular region or a particular class of authority, obviously with the support of their independent panels? Would it still be open to them to move in that direction, getting a sort of bulk purchase by agreement rather than it being imposed externally? It would be helpful to have some assurance on that.
Lord Wallace of Saltaire
My Lords, I am happy to give that assurance. That is entirely acceptable and to be expected within the Bill. Often small authorities in particular will find it convenient and useful to combine how they approach this matter. However, as the noble Lord has just said, this is by voluntary co-operation rather than by imposition from the centre.
I have to reprimand the noble Lord, Lord Tope, for making exactly the first point that I was going to make, thus cutting down on what I have to say.
Baroness Eaton
It is not often that I agree with much of what the noble Lord, Lord McKenzie, says in this context, but I fully agree with much of what he has said about the role of the audit committee. Having chaired the audit committee of a large metropolitan authority myself, I see great value in it. The proposal for an audit panel in addition is really a sledgehammer to crack a nut. It adds again to the bureaucracy.
I have slight concerns about the requirement for a majority of independent members. I see fully the value in the noble Lord’s suggestion of an independent chairman, but it is extremely difficult in many authorities to find suitably knowledgeable and qualified people to take these roles. I know that under the old standards regime, finding suitable people to chair those bodies was quite difficult. In some cases, they had the desire to take over the world and gradually grew, like Topsy, the role of that body. If we could have independent chairmen, that would satisfy what is perceived as the body’s independence. I certainly do not see the need for an additional body in the audit panel to decide who should audit the authority. There are many checks and balances already within local authorities on probity issues, as I said earlier, so this is an unnecessarily bureaucratic step. The audit committee could happily perform that role.
Lord Tope
My Lords, the noble Lord, Lord McKenzie, has raised a very important and useful issue. We will discuss in relation to a later amendment the actual composition of a committee or panel and the number of independent members on it. I would guess that most principal authorities have an audit committee. I do not know, but it had not occurred to me that they would not until now. In many cases, as in my own authority and as that of my noble friend Lord Palmer of Child’s Hill, that committee is chaired by a member of the opposition. That is very much not the same as an independent chairman. Nevertheless, it is a good practice that is followed by many authorities. In my case, it is a Liberal Democrat authority, while in my noble friend Lord Palmer’s case it is a Conservative-controlled authority. It is therefore a useful extension to have a panel or committee chaired by an independent member.
There is room now for further discussion and consideration about whether we really need to have completely separate and independent auditor panels, as proposed in the Bill, or whether there is some way of meeting that through the existing audit committees and amending that practice. Rather than reinventing something that in most cases is working quite well in practice, I would rather see us adapting it. It can certainly be adapted without too much difficulty to meet the Government’s requirements through the Bill, which I think we all broadly support. We are all trying to achieve the same ends, so having poked a little fun at the noble Lord, Lord McKenzie, for the previous amendment, I thank him sincerely for raising a very important issue with this series of amendments.
Lord Wallace of Saltaire
My Lords, we will move on to the question of health bodies in our discussion of further amendments, and I hope that the noble Lord will allow us to return to the issue when we deal with them.
In answer to the noble Lord, Lord True, the Bill would not prevent someone who had worked for the local authority but had finished working for the local authority more than five years ago acting as an independent member of the panel. That is certainly my reading, and I state that as the Government’s clear understanding of the position.
On the question of a close friend—I appreciate that the noble Lord, Lord Beecham, is querying this—I am told that the phrase is already in the Localism Act. It is, to some extent, a matter of perception, but we all understand, from having dealt with local authorities over a long period, that this is one of the areas where one needs to make sure that panels look independent and are assured to be independent. Where someone seems like a close friend, it is clear that we will give guidance that that sort of person ought not to be appointed to a panel in that area.
There is more on the definitions in the letter of intent that was circulated on Monday, which I hope noble Lords have seen, and there will be more in the guidance provided to local bodies. I hope that provides sufficient reassurance for the amendment to be withdrawn.
Lord Tope
My Lords, I am slightly confused, because the group of amendments with which we are dealing is about the relationship between audit committees and auditor panels. The noble Lord, Lord McKenzie, as the mover of the amendments, will comment on that in a moment. However, I am quite sure that we will return to this issue, if only to seek clarification about the distinction and whether the two bodies should be, or have to be, separate. My noble friend Lord Wallace seemed almost to be saying that the auditor panel could in effect be a subcommittee of the audit committee. I do not think that that was quite what he meant, but maybe it was. We still need to clarify that role.
My confusion started when my noble friend went on to reply to Amendment 14BBA, which is not only in the name of the noble Earl, Lord Lytton, but in mine. That amendment has not been moved yet, so I am not quite sure whether we are dealing with it. If we are, and for the sake of preventing us from dealing with it later on—if and when it ever gets moved—perhaps I might say that the noble Earl is vastly more expert than me on the case of small bodies, such as parish councils and the like. However, the amendment comes from the Local Government Association, which represents primarily the larger authorities that do have these concerns. Personally, I have no great problem with majority independent members, but the LGA is concerned about it on a number of grounds.
First, the LGA quite rightly makes the point about the professional integrity of auditors, which the noble Baroness, Lady Eaton, has already made, as has the noble Lord, Lord True, and others, and which I think we all accept. They are already fully regulated, quite rightly and properly, and therefore the perception of independence is, in a sense, already covered to a considerable extent by the regulation.
Secondly, there is the rather more important, practical problem of whether in some areas it will be possible to find a significant number of truly independent people. That does not mean somebody elected to the council as being independent of a political party; it means somebody who is truly independent of the council in a way that is defined in the schedule. In some areas, it may not be possible to find sufficient people of relevant experience. That does not mean that they have a professional qualification necessarily, but that they have relevant experience and are also able and willing to put in the necessary time to serve on this. That may be less of a concern in some London boroughs that many of us know. However, I can well see that in more rural areas or smaller district councils, it may well be quite a significant difficulty. That is part of the concern that the LGA was raising and which we need to include in this debate, whichever amendment we are debating at this moment.
Lord Palmer of Childs Hill
Since we are not sure which amendment it is, perhaps the Committee will forgive me if I say just a word, having come in late on this section. I hope it will. I want to pick up on what the noble Lord, Lord Beecham, said about close friends. I feel that whatever legislation these Houses of Parliament pass should not be capable of ridicule. That must surely be paramount in people’s minds. Can one imagine the situation in which people vehemently deny that they are a close friend: “I am not a close friend, let me on it.”? It is quite nonsense. The idea of having to justify not being a close friend is capable of being ridiculed.
We are not putting these words into the Bill; we are trying to say that the relationship of someone in this position should not be such that they could influence the person on the panel. Imagine a court trying to decide whether this person was a close friend when they were denying it. Mr Saatchi and his wife might have problems saying whether they were close friends, given that he put his hands around her throat—he has been cautioned, so I think I can say that. It really is a worry. As I say, I understand what the Bill is trying to do and it is absolutely right to do so. However, to pick up on what the noble Lord, Lord Beecham, has said, the words are unfortunate.
Lord Palmer of Childs Hill
My Lords, perhaps I can come back on that because I am probably the only person in your Lordships’ House who is a chairman of an audit committee. The present situation in many audit committees, of which mine is one, where the chairman is a member of an opposition party, which I am, gives an incredible independence. You are not part of the ruling party and when we were in power we did the same the other way round.
As the noble Lord mentioned, we already have two independent members, which is very good. However, the trouble is that if you appoint an independent chairman or chairwoman of the committee, that person could well have a political affiliation. Therefore, when the controlling party in that local authority was looking for an independent chair of that committee or panel, not unnaturally it would look to people whom they know or know of. The current situation where the person is of an opposition party, where that is relevant, seems to get over that point because that person is not a close political friend. I just wanted to pick up that point from my personal experience as something to think about that when we are considering this point.
Lord Tope
My Lords, I think that we are trying to achieve the same thing here and therefore further discussion will be helpful. I pick up on the Minister’s example of an auditor panel that has two independent members, in the terms defined thus far, and a member from the audit commission. Whether they are friends by any definition, they could easily be members of the same political party. In a slightly different context, we said earlier that all of us are concerned that that should not happen in terms of elected members, with a majority party having a majority on the committee or sometimes even all the places on the committee. If we are talking about a small auditor panel, with the three members suggested, it is possible—this is not in the realms of fantasy in some areas of the country—that all three could be members of a political party. That does not necessarily imply a conspiracy or corruption; that is merely how it is in that area.
Thanks to the noble Lord, Lord True, we have moved to an area to which we may have to give greater thought if we are to achieve the objectives we all share.