Localism Bill

Lord Jenkin of Roding Excerpts

Monday 12th September 2011 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, in Committee, I gave a commitment to consider the noble Lord’s amendments aimed at removing the Secretary of State’s powers to make regulations prescribing rules and restrictions about the discharge of functions of local authority executives by area committees. I am delighted to say that today we are bringing forward amendments which achieve those aims.

Amendments 120 to 131 and 160 delete in their entirety the Secretary of State’s powers to make regulations in relation to area committees and remove unnecessary conditions, which previously applied to the creation of such committees, including the maximum area that a committee could cover. In future, councils will be free to set up whatever area committees they wish and give them whatever executive functions they consider appropriate without having to rely on regulations made by the Secretary of State. I hope that noble Lords will agree that this is a good deregulationary part of my work. I beg to move.

[Lord Jenkin of Roding]

I very much welcome what my noble friend has said. I shall refer to this a little later when we come to the Amendment 155 group.

[Lord Beecham]

My Lords, I welcome the noble Baroness’s acceptance of the concerns that were raised and their reflection in this group of amendments. If we could have similar co-operation over the rest of the Bill, we would be delighted—and surprised.

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Moved by

[Lord Jenkin of Roding]

155: Schedule 2, page 240, line 23, leave out from beginning to end of line 23 on page 241

[Lord Jenkin of Roding]

My Lords, noble Lords may recollect that on several occasions during the Committee stage I was moved to criticise and protest about the mass of detailed prescriptive measures in the Bill, with the prospect of more to come through the battery of regulations that are foreshadowed in the legislation. My main point can be stated very simply: at the centre of Part 1 is the welcome provision that gives local authorities a general power of competence. Whereas in the past they could do only what statute allowed them to do, now they will have the same competence as individuals. In other words, at a stroke local authorities can cast off the shackles of government control. Yet at almost every point in this Bill, in every part and schedule, there are pages and pages of directions going into the minutest detail of how local authorities must implement these provisions.

As I pondered this my mind went back to what is, I am afraid, another anecdote in the form of an old political joke. A communist orator was haranguing the crowd saying, “It’s the rich who have their dinners at the Ritz hotel and the poor have to go to Smokey Joe’s. But when the red revolution comes and you get your freedom, it will be the rich who will have to go to Smokey Joe’s and you’ll be able to eat your dinner in the Ritz”. The little man at the back put up his hand and said, “I’d rather go to Smokey Joe’s”. The orator said, “When the red revolution comes and you get your freedom, you’ll damn well do what you’re told”.

The local authorities associations have made it very clear that they dislike being told how to do things. They dislike being told how to write letters, how to conduct referendums, how to co-operate and much else besides. I voiced their dissatisfaction and I was not alone. In all parts of the House, noble Lords supported my protests, and at times I became quite heated.

My noble friend Lord Tope, who is very experienced in these matters, noted that there has been a culture in Whitehall whereby they feel they have a duty to tell local authorities how to carry out their functions. However, he also noted that the local authorities themselves have absorbed that culture to the extent that they now expect to be told how to do things. My noble friend on the Front Bench has already indicated some movement in this and we are very grateful.

Before the Recess, I sought out my right honourable friend Greg Clark, the Minister of State in charge of the Bill. He agreed to meet me with a deputation from the Local Government Association and London Councils. At that meeting, which happened a few days after the start of the Recess, we set out our concerns and provided him with a long list of detailed provisions, which we believed could be dropped without affecting the purposes of the Bill.

After discussion, the Minister agreed. He agreed that his officials and those of the associations should get together during the Recess with a view to agreeing what might be dropped. Last week I was sent a long letter from the department setting out the amendments whose purpose Ministers were minded to accept, others which they were reluctant to accept, and some where decisions still have to be made. It was not everything but it is a very good start. I expressed my pleasure both to the officials and to the Minister.

The House has already welcomed Amendments 120 to 131 removing the powers to make regulations in respect to area committees and conditions which apply to the creation of such committees. We have also just accepted Amendments 132 to 150, substantially simplifying the scrutiny provisions, and these certainly stemmed from the discussions.

I am told other amendments will be tabled about the frequency and conduct of referendums. We will also come to the amendments on the right to challenge, Amendments 197E to 197G, where there is to be guidance instead of statutory prescription. There are also amendments on the community right to buy, Amendments 203, 203B and 203C.

These are a very welcome start and there is the prospect of more to come, especially on planning. Some of my amendments in the group, led by Amendment 155, have been dealt with, and I warmly welcome the government amendments in the group.

I end by picking out two of my amendments—it would be tedious to go through the lot—that have not been accepted so far. They are Amendments 158 and 159 on referendums, and Amendment 204 on the duty to co-operate. On referendums, there are two distinct issues: first, when and in what circumstances a referendum should be held; and, secondly, how they should be conducted. On the first issue, it would seem sensible to deal with that on each occasion that it comes up in the Bill, because they may differ from case to case. On the second issue, however, it really is necessary to stop telling local authorities how to suck eggs. They have great experience in running referendums and they should be trusted to do that properly, not have to be told how to do it.

Amendment 204 refers to the duty to co-operate set out in Clause 98. I really do not believe that local authorities need to be told how to co-operate. They, after all, have been co-operating with each other for a very long time and it is an impertinence to have to spell out in the Bill how they are supposed to do it. They are well accustomed to doing it and they should be trusted. I hope that my noble friend may be able to comment on both the referendums and the duty to co-operate.

I referred at the beginning of my speech to the culture—perhaps it might be better called a mindset—whereby Whitehall feels that it has to tell local authorities how to conduct their functions, while the local authorities expect to be told. If the general power of competence is to mean anything in practice, that culture—that mindset—has to be changed. The best way to start changing it is to stop doing it. I beg to move.

[Baroness Hamwee]

My Lords, unless the Minister is about to move the government amendments—I was wondering whether she was going to do that—perhaps I should keep going.

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[Baroness Hanham]

My Lords, again we are having a major discussion on the amount of regulation in the Bill and the amount that we can try to remove as time goes on. My noble friend Lord Jenkin has been very clear all the way through that he thinks that there is too much prescription within the legislation. Sometimes I have agreed with him as in the area committees on which we have removed all the regulation today and sometimes we believe that there is a rationale for that amount of detail in the Bill. Some of what I will say falls along those lines. Where we have been able to take parts out as in my previous amendments we have done so, but there are still areas where—I hate to disagree with my noble friend Lord Jenkin—we are not quite on the same track.

I will briefly go through the amendments that my noble friend has tabled and give my reasons why we may not be able to accept them. Amendment 155 deletes new Sections 9MD and 9ME from Schedule 2 to the Bill. These new sections replicate the safeguards which the previous Government sought to establish and which this House approved, so I hope that we will have support from noble Lords opposite. They enable the Secretary of State to ensure that local people can have their say on governance arrangements if needed—for example, in cases where referendums have not been held when required or where unreasonable arrangements or timeframes are being proposed.

It could be argued that these powers are not necessary given the provisions in new Section 9N, but we do not believe that to be the case. Orders under that new section can require only a mayoral referendum and not referendums on any other form of governance—unlike the provisions in new Sections 9MD and 9ME.

Amendments 158 and 159 would remove the ability of the Secretary of State to make regulations about the conduct of governance referendums. As I have tried to explain, I have listened carefully during the course of our proceedings to concerns about the amount of delegated powers, but I am afraid that I am not going to be able to agree with the amendments. As with many provisions in Schedule 2 to the Bill, the power in new Section 9MG to make provision about the conduct of local governance referendums replicates an existing power in the Local Government Act 2000. Regulations were last made under the 2000 Act in 2007. Our broad intention is to replicate these regulations when bringing forward new secondary legislation under this provision in the Bill. The current regulations cover all aspects of organising and conducting polls at governance referendums, including the opening hours of polling stations and the content of ballot papers, ensuring polls are held in accordance with the practices for an election.

Given the importance of the referendum’s subject matter and the fact that the result will be binding on the council concerned, I think that not only are these regulations needed but that the level of detail about the procedure to be followed is appropriate. It is vital for local people to be assured that robust, fair, open and consistent arrangements are put in place for governance referendums in order for them to feel that their vote will count.

Should noble Lords accept our Amendment 162, regulations made under new Section 9MG will be subject to affirmative resolution procedure. Accordingly, I hope that noble Lords will have the opportunity to debate and consider the content of the regulations before they are made.

Amendment 159A seeks to delete the Secretary of State’s power in new Section 9N to make an order requiring specified local authorities to hold a mayoral referendum. This power is central to delivering the coalition agreement commitment to create directly elected mayors in the 12 largest cities in England, subject to confirmatory referendums. The power in new Section 9N to provide for mayoral referendums in our largest cities does just that, and nothing more. It will allow for local people to make their choice at a referendum, and in those cities where there are votes in favour of the mayoral model, for the city to be governed by an elected mayor.

Amendment 204 would remove the requirement—the noble Baroness, Lady Hamwee, touched on this—for bodies subject to the duty to co-operate to,

“have regard to any guidance given by the Secretary of State about how the duty is to be complied with”.

The duty to co-operate signals a significant change in the way that strategic planning will happen. There are conflicting views on whether the duty to co-operate will be overly prescriptive—the point my noble friend Lord Jenkin was making—or too flexible. Indeed, we have been criticised by some in the House for the lack of prescription in our approach to strategic planning and have debated amendments to define the outputs, process and boundaries to be used by local councils. We consider that strategic planning needs to be a flexible process that allows councils to decide how best to serve their local communities, businesses and interested parties and we continue to reject prescriptive approaches. A duty to co-operate is intended to drive a culture change and new spirit of partnership working in the ways that councils and other public bodies work on strategic planning matters. It will be vital that councils and their partners rise to the challenge. Any guidance issued will be light touch rather than prescriptive, will focus on ensuring the efficient introduction of new policies and will be produced in consultation. In the light of the explanation I have given, I hope that my noble friend will be willing to withdraw the amendment.

[Lord Jenkin of Roding]

My Lords, when I tabled these amendments the purpose was to have a debate of exactly the kind which we have just had. I am sorry that it has come fairly late in today’s proceedings but I am immensely grateful to those in all parts of the House who have recognised that there is an issue here which had to be addressed—and it is being addressed. Noble Lords have said kind things about me but Greg Clark responded immensely positively to the approach which I made. Officials in the department and in the local authority associations have worked very hard to do this.

As regards what amendments should go into the group, I tabled a lot of the amendments and asked the Government Whips Office to put them all together so that we could have a debate. Of course, we will come back to some of these issues at a later stage. I think both the noble Lord, Lord Beecham, and my noble friend have indicated that there are issues to which we shall need to come back. As I understand our rules, when we get to Amendment 204, it is perfectly possible for anybody to move it and speak to it. The fact that it has appeared in an earlier group is not an absolute bar. However, in the light of the publication of the framework planning policy paper, we may well look at some of these issues. As the noble Lord has said, that will be in October on the last two days of our Report proceedings.

I take the point that some of these amendments may well merit considerably longer debate than we have had today. However, I think that the purpose of this debate has been served. I think that Ministers in my noble friend’s department have recognised that the Bill’s drafting has gone through the other place apparently without much being said about this. We started the argument in Committee here and it has now been accepted that this is not the appropriate way for the Government to treat local authorities these days, particularly in the light of the general power of competence. Nevertheless, there will be other opportunities to come back to some of these issues, and I hope that those opportunities will be taken. I cannot say that the Bill is going to get any shorter, because in the course of the proceedings of the last two days in Committee we have added a great deal to it, but those measures have been welcomed in all parts of the House.

I hope that we have now started the process of trying to dismantle this mindset of local authorities having to be told how to do their job. They are responsible, elected bodies, and if they are going to have a general power of competence, let them get on with it. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.