|Previous Section||Home Page|
(a) a local authority have specified or are proposing to specify any post under the authority in a list maintained under subsection (2) of section 2 above ;
(b) the holder for the time being of the post applies to the person appointed under subsection (1) above for exemptions from political restriction ;
(c) the post is a post falling within paragraph (a) or (b) of that subsection which has been certified by the authority to be a post the duties of which, in their opinion, do not fall within subsection (3) of that section ; and
(d) the person to whom the application is made is satisfied that the duties of that post do not so fall,
that person shall direct that, for so long as the direction has effect in accordance with its terms, the post is not to be regarded as a politically restricted post and, accordingly, is not to be specified in or, as the case may be, is to be removed from that list.'.-- [Mr. Gummer.]
(2A) References in this section to a "person" shall be taken to include references to a tribunal of such persons, appointed by the Secretary of State in accordance with subsection (2B) below for the purposes of carrying out functions under this section.
(2B) Any tribunal appointed under subsection (2A) above shall comprise a Chairperson, who shall be a person with experience of local government appointed after consultation with the local authority associations, and one representative each of local authorities as employers and of trades unions with members employed in local government grades to which political restriction may apply, or such other representation as the appellant may choose. (2C) Any decision by a tribunal appointed under this section shall be by majority vote.'.
(3A) Irrespective of any appointment or appointments made in accordance with subsection (3)(a) above, the Secretary of State shall appoint a different person for Scotland than any person appointed for England and for Wales.'.
Column 783would be much fairer. It would be in keeping with what is happening in and around local government. It would be a mirror of what is happening in industry, where, instead of having the one person to act as an arbitrator, there is a tribunal. Therefore, we consider that amendments Nos. 137 and 152 are important.
Mr. Andrew Welsh : This debate is about the system whereby individuals can appeal for exemption from political restrictions. The Government believe that one person only should be appointed to consider applications for exemption. The amendments, by contrast, allow for a proper system of appeal regarding exemption or political restrictions. If it is right that individuals should be able fully and fairly to participate in the democratic political process, it is surely just, correct and essential that a proper system of appeal be instituted. Individuals affected by the legislation must be protected by an appeal system that is, and is seen to be, fair. Unamended, the Government proposal does not ensure that. I therefore support the amendment.
Amendment No. 137 advocates a tribunal system. It also ensures that local government expertise will be available to the tribunal, which is important. There is a mass of expertise available within the Government and it should be used to protect the rights of individuals when those individuals feel that their rights as citizens are under threat.
In the Bill, there are none of those checks and balances which are normally associated with a democracy or any proper appeal system involving any public body. The amendment seeks to give confidence to anyone involved in appealing against a decision and will be seen as such. It will give greater confidence in a system which everyone in local government will rightly treat with caution. The Government's attitude to and record in local government forces caution on every person involved with the local government system. They have good reason to be wary about what the Government are doing by attempting to shackle and hamper the work of democratically elected individuals. People would approach the new system with caution and the new system would allow them at least to have some confidence when they appeal against decisions.
Similarly, amendment No. 152 is essential properly to take into account the fundamental uniqueness of the Scottish local government system. I am glad that the Under-Secretary of State for Scotland is present. I believe that the Scottish local government system has not been adequately catered for throughout the passage of the Bill. Certainly amendment No. 152 would begin the process of taking into account the uniqueness and the differences built into our national system of local government and law. It is not good enough for the Government to take a uniform system suited to Wales and England and apply it without thought or alteration to the very different circumstances of Scottish local government.
I point out to the Minister the comments of COSLA. It rightly points out that structurally the Scottish system of local government varies widely from the system in England and Wales. Not only is the functional allocation different, but Scottish local government is unique in terms of its system-- for example, for islands government. I know of
Column 784no equivalent in England. There is also a diversity of large and small units of government. There is a massive diversity between one local authority containing half the Scottish population and other small local authorities. A vast range of local authorities with different needs must be taken into account by the Bill. The imbalances far exceed anything to be found in England as, in fact, do the geographical differences between the two nations of Scotland and England.
Local government in Scotland is rightly the responsibility not of the Department of the Environment, but of the Scottish Office and the Secretary of State for Scotland. Hence, regulations, orders and circulars relating to the Scottish aspect and considerations emanating from United Kingdom-wide legislation are produced by the Scottish Office in recognition of that line of responsibility. The amendment seeks to extend that reality in a way that is useful in protecting Scottish local government.
I therefore support the amendments that emanate from the vast and practical experience of COSLA and take proper account of Scotland's individual and unique local government system. I believe that the Government are being short-sighted in their approach and that they will be making an unnecessary and fundamental mistake if they do not accept the amendment. As the Scottish Minister is here to speak for himself, I hope that he will take on board the need to take into account the distinctiveness of the Scottish system and will produce amendments that will allow people to have confidence in the new system as and when it is put into operation should the Bill go through unamended.
Mr. McAllion : I support amendments Nos. 137 and 152. Amendment No. 137 has a much better formulation for adjudication than the Bill. As it stands clause 3 would provide for a single adjudicator to be imposed upon the local authority from the outside by the Secretary of State. I assume that to be the Secretary of State for Scotland, although I am not clear and it might be that the Secretary of State for the Environment would impose that adjudicator on Scottish local authorities.
I believe that the idea of an adjudicating panel which has the confidence of the local authorities and, presumably, the confidence of the Secretary of State, as he would appoint the chairperson, is much better than imposing someone from outside on local authorities. It has the advantage of being much more democratic and of being based on the co-operation of both the local authorities and the employees who work inside the local authorities.
If General Jaruzelski was imposing his will on
Solidarity--controlling local authorities--in the same way that the Minister for Local Government is imposing his will on our Labour-controlled local authorities, which side would the Minister be on? If General Jaruzelski had said to Solidarity that he intended his own appointee to impose his will upon Solidarity, with no consultation with Solidarity and with no consultation with the workers, I am sure that the Minister would be singing a different tune. If the Minister chose to stand up and say that, unlike General Jaruzelski, he is elected, that is not correct. In terms of Scottish local government, the Government have no democratic mandate to impose such measures on Scottish local authorities.
Amendment No. 152 tries to provide for a separate Scottish adjudicator and tries to establish that principle in
Column 785the Bill. I know that its terms are not exactly the same as those set out in amendment No. 137 as amendment No. 152 says :
"the Secretary of State shall appoint a different person for Scotland than any person appointed for England and Wales.' " Amendment No. 137 says that the adjudication would be undertaken by a panel of three. That is just a technical point--all we want is the Minister to agree to the principle. I would be happy if the Minister accepted the principle that the Scottish chair should be appointed by the Secretary of State for Scotland, that the representative of the local authorities would be picked by COSLA and the representatives of the workers picked by the appropriate trade unions.
In Committee, I tried to raise this matter when the Minister said :
"It will be possible for one adjudicator to adjudicate in England and Wales, and another to adjudicate in Scotland, for one to do the whole lot, or perhaps for there to be three."
The Minister therefore said that almost anything was possible. I pressed the Minister about that and asked whether clause 3(3)(a) which says that the Secretary of State may :
"appoint different persons under subsection (1) above for England and for Wales"
in any way diminished
"the right of the Secretary of State for Scotland to appoint people for Scotland?"
The Minister replied :
"The hon. Gentleman is perfectly right. It is possible for the same person to be selected by the Secretary of State for Wales and, for instance, the Secretary of State for the Environment. However, we are not discussing that point."
That was a complete non-answer and irrelevant to my question. The Minister went on :
"A reasonable way in which to proceed is for me to give the Committee an undertaking to bring forward an amendment on Report that will clarify more exactly the way in which the adjudication system will work".--[ Official Report, Standing Committee G, 7 March 1989 ; c. 200.]
Having studied the amendments that have been tabled tonight, I do not see any Government amendment that clarifies the way in which the adjudication system will work.
It is important for the Government to recognise that there is a separate Scottish dimension to this question which means that we must make separate provision for Scotland. It must be appropriate to Scotland and must not impose on Scotland, through the Secretary of State for the Environment or the Secretary of State for Wales, some kind of adjudicating system.
The case is overwhelmingly in favour of a distinct approach for Scotland. The local government structure in Scotland, with its regional, district and island councils, is different from that of England and Wales. It would make little sense to someone who did not have experience of Scottish local government. When the Labour party wins the next general election, the Scottish Parliament, once established, will immediately institute a further reform of local government that will make local government in Scotland even more obscure for anyone who comes from outwith Scotland and does not understand the Scottish system.
The allocation of functions between district, regional and island councils is different from the allocation of functions in England and Wales. In Scotland we have unique circumstances. Strathclyde council employs a number of staff who deal with the press and handle the
Column 786public relations of that council. Many of those employees have regular contacts with journalists and several of those who deal with the media earn more than £13,500. I assume that there would be no controversy about whether those people would be placed in the "politically restrictive posts" category. Perhaps the Minister will be able to tell us if that is so. Six other members of the same council department do not have regular contact with the media, but with the public. Two of those people earn more than £13,500 and four do not. How will those four be affected by the Bill? If we do not have a Scottish adjudicator, how will he make sense of the practice of Strathclyde regional council and how will he be able to distinguish between the different categories of officials and decide whether the restrictions should be applied to them?
It does not make sense for the adjudicator not to understand the Scottish system as he runs the risk of making catastrophic errors when deciding to restrict any of the posts. Two of the officers of Strathclyde who do not deal with journalists, but who deal with the public, would have a right of appeal because they earn more than £13, 500, but the other four earn less, even though they are doing the same job. The whole thing is a mess, but things would improve if there were a provision for a separate panel of Scottish adjudicators in line with amendment No. 137.
The House already recognises that local government in Scotland is accountable not to the Department of the Environment but to the Scottish Office. That is why the Parliamentary Under-Secretary of State for Scotland is present tonight. If the Government recognise the separateness of Scotland to that extent, they should go further and recognise that Scotland should have a separate adjudication system.
We are not talking about something that will have a marginal effect. Edinburgh district council has calculated that more than 500 officers are likely to be affected by the Bill. Those officers range from administrators to solicitors, the secretariat, the technical service officers, the service engineers, maintenance and repair personnel and even its theatre manager. What happens when that manager decides to stage "Harmony Row", a production by the Scottish Wildcat Theatre company, which is a play against the poll tax? Would the theatre manager be allowed to put on that play which attacks the poll tax, or would he be accused of indulging in political activity under the Bill? Such are the anomalies thrown up by this ridiculous Bill.
The only way in which to make the Bill better is to ensure that at least some kind of Scottish sanity is written into it by ensuring that there is a separate system of Scottish adjudication. I look forward to the Minister's reply.
Mr. Wallace : I support amendments Nos. 137 and 152. Amendment No. 137 calls for a panel of adjudicators and that is justified, otherwise an enormous burden would be placed on one individual. The hon. Member for Dundee, East (Mr. McAllion) has already said that more than 500 employees of Edinburgh district council are likely to be affected by the Bill. For a start, therefore, that means that potentially 500 appeals could be lodged.
In our previous debate, the Minister for Local Government was most reasonable and said that the adjudicator had already predetermined a vast number of cases, not least those affecting manual workers. Many of us would have liked to have seen that predetermination
Column 787embodied in the Bill. Even if we accept the Minister's word, many people will still wish to take their appeal to the adjudicator. Perhaps the Parliamentary Under-Secretary of State for Scotland can tell us what the adjudicator's view will be of the teaching profession. A number of teachers are councillors in an authority by which they are not employed. I would welcome some reassurance about that.
Nevertheless, this would be a tremendous burden to put upon one person. I was going to say that the Government were here creating another quango but that implies an organisation and with one person it would probably be a quan-guy. One wonders how much this person will be paid for carrying out this function, which I foresee as being, in the initial stages at least, a full-time job.
Let us think in simple terms for one moment of what this person is being invited to do. The appointee of the Government is being asked to determine whether individuals may indulge in political activity, some of which, and probably much of which, is in an interest which could well be opposed to the interest of the Government. The appointee of the Secretary of State will be asked to make that fundamental decision, which affects the rights of an individual citizen to participate in the political process. It would have been unthinkable a few years ago to put that into the hands of a Government appointee, but that is what the Government are asking us to do in this Bill.
I therefore support the idea that if this is to be done at all it should be done by an appeals body and not left in the hands of one person. It should be done by a tribunal which reflects the interests of employers, employees and the Secretary of State. Apart from anything else, that would help to share the load. When one is debating fundamental political liberties, there is no reason why a person should be expected to wait a considerable length of time for an appeal to be heard, as would be almost inevitable if the duty were imposed on one individual.
I shall be very brief with regard to amendment No. 152 which asks for a specific person to be appointed for Scotland. It has already been said that Scottish local government is an entirely separate structure. I can see no good reason why we should tag along with what the English and the Welsh are doing. We need someone who understands fully the ins and outs of Scottish local government. For the Government to refuse a quite reasonable amendment such as this would be obduracy at its worst.
I therefore hope that the Under-Secretary of State, who always aims to please, will succeed in doing so in this case.
Column 788enthusiasm about appointing a tribunal. It has always been the Secretary of State's intention that the adjudicator should be a person with suitable experience. We shall most certainly keep an open mind on that matter.
As my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) explained in Committee, we believe that the issues are fairly clear cut. We believe that it is unnecessary to establish a tribunal. I do not see why Opposition Members feel that a tribunal comprising representatives of interested groups and trade unions would serve the necessary purpose. It should be the role of an independent adjudicator alone to consider an application for exemption against a clear statutory framework, but he would be in a quasi-judicial role.
Mr. O'Brien : If the Minister accepts that it is right for the Civil Service to have an appeals tribunal--a tripartite system--why does he insist that local government should not have the same facilities? That is simply the hypocrisy that exists on the Government Benches.
Lord James Douglas-Hamilton : Widdicombe did not make the recommendation which the hon. Member is suggesting and I believe that the circumstances are different. For example, it is not possible for civil servants to stand for Parliament, but it is certainly possible for local authority officials below a certain level to do precisely that.
One of the advantages of having an independent person as compared to a panel is that he would be truly independent and not a representative of interest groups. I do not think it appropriate that trade union representatives should sit in judgment on this question. We do not see this in any sense as a bargaining matter ; it is the application of a clear-cut set of criteria determined by Parliament as set out in clause 2(3) of the Bill. The adjudicator will, of course, be expected to act independently and impartially. The hon. Member for Dundee, East (Mr. McAllion) spoke at considerable length making the case for an adjudicator for Scotland. Indeed, the hon. Member spoke about this in Committee. I accept his argument. I believe that it is right, proper and appropriate that there should be a separate adjudicator for Scotland. He or she will be appointed by the Secretary of State for Scotland under the provisions of clause 3 to serve as the independent exemptions adjudicator for Scotland. So I hope that that amendment will be withdrawn.
I want to deal particularly with the point raised by the hon. Member for Angus, East (Mr. Welsh), who asked a question which he raised a year ago in the Committee which considered the Local Government Bill, about the words "Secretary of State for Scotland". He asked whether, when the Secretary of State is referred to, these words are interchangeable. I quite understand why the provisions in subsection (3) (a) of clause 3 may have led to the supposition that a similar provision may be necessary for Scotland, but an express provision for Scotland not only is unnecessary but would be positively undesirable.
Subsection (3) (a) is intended to avoid any doubt about the power of the Secretary of State for Wales to make a separate appointment in Wales under subsection (1). No such doubt arises in relation to the powers of the Secretary of State for Scotland in this matter, but it might well arise in relation to existing legislation if the amendment were to be made.
Column 789It is a well understood convention that in a Great Britain Act dealing with matters such as local government where the Secretary of State has full territorial responsibility, powers conferred on the Secretary of State for Scotland may be exercised separately and, if necessary, differently by him within Scotland. Therefore, it is unnecessary to add an express reference to Scotland and to do so might cast doubt on the many other legislative provisions that are now read in accordance with the convention.
Mr. Wallace : Will the Minister answer my question about how much such a person will be paid? Secondly, does he accept that it is difficult for a person to be seen to be independent if he is appointed by the Secretary of State? Can he give a guarantee that the person will be barred from the same political activities from which the legislation aims to disbar council employees?
(c) to secure that the officer is a person who appears to have the requisite knowledge and experience to discharge the functions of the monitoring officer. Either the monitoring officer or deputy monitoring officer should be a barrister, advocate or solicitor called or admitted in any part of the United Kingdom or a member of the Institute of Chartered Secretaries and Administrators.'. The amendment is inspired by the Institute of Chartered Secretaries and Administrators and it seeks to define the qualifications required by the monitoring officer.
The monitoring officer will be responsible for drawing the attention of the authority to any decision or omission which contravenes any rules of law or conventions binding the authority which would result in maladministration. Therefore, the monitoring officer will need a working knowledge of local government legislation and any local conventions that are binding. He will also need to know of any actions which result in maladministration or injustice by the authority.
The monitoring officer will also be required to monitor "any proposal, decision or omission by the authority, by any committee, sub-committee or officers".
Therefore, a knowledge of local authority committee structures and procedures would be a distinct advantage.
The amendment ensures that the monitoring officer or his deputy is either a lawyer or a member of the institute to which I have referred, and it would require the authority to appoint an officer who would have the knowledge and experience to do the duties in a professional and thorough
Column 790manner. It would also ensure that the public would be assured that councillors receive and act upon sound professional advice.
Mr. Gummer : I have sympathy with my hon. Friend but I hope that he will accept that, on balance, it is better not to increase the number of requirements wherever that is not utterly necessary. It is up to the local authority to decide who should be the monitoring officer. I am not entirely convinced that it is right to make it a kind of closed shop of particular people with particular qualifications. In general, it is likely that monitoring officers will be in possession of one or other of those qualifications, but that will not always be so and in some local authorities the person who is the obvious choice will not fall into those categories. It is much better that the local authority should have that decision in its own hands.
I hope that my hon. Friend will agree that the care with which I have sought to listen to and discuss with the bodies representing those various groups shows that I have a high view of the responsibilities and personal needs of those senior officers. However, in the end, it is better to leave this to the decision of the local authority. I assure my hon. Friend that I shall keep a close eye on what happens, and if there is a future need to do something of the kind that he suggests, no doubt we can return to the matter.
Amendment, by leave, withdrawn.
Amendments made : No. 275, in page 7, line 42, leave out from obligations)' to end of line 44, and insert
or otherwise, to ensure that no step is taken for giving effect to any proposal or decision to which such a report relates at any time while the implementation of the proposal or decision is suspended in consequence of the report'.
No. 276, in page 7, line 48, at end insert--
(5A) For the purposes of paragraph (b) of subsection (5) above the implementation of a proposal or decision to which a report under this section relates shall be suspended in consequence of the report until the end of the first business day after the day in which consideration of that report under paragraph (a) of that subsection is concluded.'.
No. 277, in page 8, line 6, at end insert--
"business day", in relation to a relevant authority, means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or any day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of Great Britain where the area of the authority is situated ;'.
Mr. John Maxton (Glasgow, Cathcart) : In nearly all Scottish local government legislation of which I am aware, the terminology region, island and district authority is fairly standard, and yet the Minister appears to be changing his mind and introducing in the Bill something rather different. Is the Minister engaged in some wily plot to introduce local government reform at a later stage?
Lord James Douglas-Hamilton : I reassure the hon. Gentleman that I have no hidden agendas in that respect. The expression "local authorities" is defined for Scotland in clause 18(2) as meaning "a regional, islands or district council or a joint board or joint committee within the meaning of section 235(1) of the Local Government (Scotland) Act 1973."
Any joint committee that is a corporate body falls within the meaning of "joint board". As we do not want the definition to embrace unincorporated joint committees, we require to delete the words "or joint committee". I will ensure that the relevant provisions will apply as intended to regional, islands or district councils and to corporate joint bodies, but not to unincorporated joint committees. The reasoning for that is that an unincorporated joint committee is not primarily responsible for the discharge of functions. Amendment No. 237 also concerns a drafting error, but I am sure that the hon. Gentleman does not wish me to pursue that.
Amendment agreed to.
(c) be a person who qualifies by virtue of section 113(2)(b) of the Local Government Finance Act 1988 (existing office holders) as a person who may be given responsibility for the financial affairs of an authority mentioned in section 111(2)(a) to (k) of that Act ; or (d) fulfil two or more of those conditions.'.