| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Whitty: A Liberal Democrat Government!
Baroness Hamwee: Yes. A Secretary of State of any party should have proper controls on her or his powers.
With regard to Amendment No. 66, the answer that the Minister gave was a good deal more helpful than that given in another place, where it was said that duty of best value would be implicit. It is not, and I entirely see what the Minister is saying. Clause 14(1) takes us directly to the issue of achieving the best value duty. Therefore, I see the connection more clearly than I did before, although common sense told me that that was the case.
As regards the proposal for scrutiny, as my noble friend Lady Maddock indicated, Select Committees do not have such powers, or do not use those powers at present. That is not to say that they should not, or that our procedures should not be modernised to enable scrutiny. There is a good deal of scope for expanding the role of Select Committees, although, as I said, this is not the appropriate Bill for addressing general issues regarding the modernisation of Parliament. However, the manner in which the Secretary of State's use of such powers is scrutinised, and how he or she is held accountable, is a serious issue. It cannot be disposed of by the suggestion that Members of the Committee do not understand how the other place works. I admit that I do not understand that as well as my noble friend. I look forward to the amendments to Clause 14. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 66 and 67 not moved.]
Baroness Hamwee moved Amendment No. 68:
The noble Baroness said: In moving this amendment, I wish to speak also to Amendment No. 69. These amendments relate to the clause dealing with intervention powers and in particular the urgency provisions.
There are no criteria on the face of the Bill as to what is meant by "urgent". The memorandum from the Department of the Environment, Transport and the Regions to the Delegated Powers and Deregulation Committee refers to particular circumstances and to authorities failing to address problems. The Bill contains no references of that kind. Clause 14(8) allows the Secretary of State to give directions without complying with some of the earlier subsections if he considers the direction to be sufficiently urgent.
Amendment No. 68 suggests some definition of urgency. I have suggested that it means,
I have tabled the amendment in the hope that any imposition of a nominee will not be for any long period; that the powers of the best value authority will be returned to it as quickly as possible; and that any intervention will be part of a continuing process and not the end of the story. On Report in another place, the Minister said (at col. 469 of the Official Report) that the Government were giving consideration to the best way of keeping those interested informed. I hope the Minister can expand upon that this afternoon. I beg to move.
Lord Whitty: These amendments deal with emergencies as the noble Baroness has said. The Bill provides that in urgent cases, the Secretary of State can issue a direction without giving the authority the opportunity to make representations about the report--if indeed there had been a report--or about the direction proposed and without having regard to any statement of
As we indicated at earlier stages, the circumstances in which we envisage the fast-track procedure being used will be rare and it will be used only in those situations which are set out fairly clearly in the draft protocol on intervention. That has been produced in conjunction with the LGA and aims to clarify these and other provisions of the Bill. It recognises that the fast-track procedure will be used only in exceptional circumstances where either the severity or persistence of failure, or the continued risk of harm or financial loss, shows that urgent intervention is necessary.
The first amendment of the noble Baroness, Amendment No. 68, refers to urgent intervention where there is immediate danger of substantial harm or substantial financial loss. It therefore reflects some of the points in the protocol. However, the reference to "immediate" in relation to financial loss may mean an immediate decision that is being taken but the financial loss may well be longer term. That could equally well occur in relation to "harm". Therefore, to place such a formula on the face of the Bill might impose an over-rigid constraint on the ability of the Secretary of State to act and remove the flexibility that we need. Clearly, in terms of substantial financial harm and financial loss, there is a need to act immediately, even though the loss that the decision or the course of action implies may not occur immediately. It could be that the long-term health as well as the short-term health of an individual or group of people cared for by the local authority could be under threat if a decision were carried through. We are therefore faced with the need for rather more flexible definitions, which is the point of the protocol. The protocol can be relatively easily adapted to changes agreed between ourselves and the LGA, whereas if we were to put it on the face of the Bill we would have a rigid formula which we could not easily alter.
Furthermore, the amendment does not deal with the case of persistent and systemic failure where perhaps ultimata or final opportunities to put it right have been missed by the failing authority. Therefore, again, there is a need for urgent action by the Secretary of State, albeit that there have been warnings and interventions under Clause 14(2) powers or other powers previously. In other words, there may be cases in which a local authority has a history of failure of which both it and the Secretary of State are well aware, but which they have taken no action to address. In those cases, the Secretary of State may not wish for a lengthy and time-consuming intervention before taking action.
I repeat: this is very much a last resort power. Nevertheless, because it would be dealing with extremely unusual situations, many of which would have been subject to the earlier powers, it is important that we maintain a certain degree of flexibility in these provisions.
Amendment No. 69 would make provision for best value authorities to make representations about directions issued under the fast-track procedure after the Secretary of State or National Assembly for Wales had issued a direction under the clause.
I have already made it clear in this and other contexts that the Government are utterly committed to working with authorities and the representatives of authorities, and that is the case here, too. However, in cases where immediate urgent action is needed there may not be time for the Secretary of State to let authorities produce detailed action plans or to make representations about the nature of the direction he is imposing. We envisage that in such cases considerable dialogue would normally have already taken place between the Secretary of State, the authority and local authority representatives and that therefore the authority would be well aware of the failure but in practice would have failed to take substantive action to address it.
The protocol sets out the procedures for bringing an intervention to an ordered close. The noble Baroness referred to the duration and the hope that any such intervention would always be for a limited period. That is also our hope, but there is a horses-for-courses issue here. The protocol setting out the procedures between ourselves and the Local Government Association will provide for regular monitoring of a function, assessment of whether the authority is in a position to resume and sustain effective responsibility for the function concerned and, during the period of intervention, there would clearly need to be a regular dialogue between the Secretary of State, or the National Assembly, and the local authority and its representatives. We therefore do not believe we need to make a separate provision to allow authorities to comment on a direction that has already been implemented. The protocol will deal with the post-intervention situation.
I hope that the noble Baroness will accept those reassurances and will not press the amendments.
Baroness Miller of Chilthorne Domer: Having listened to what the Minister has said, if I had not had Annex A which would cause the intervention to happen I would have felt reassured. However, as one goes through the examples of the triggers--a failure of process in particular--those are not substantial or urgent things. I agree that where a Secretary of State is taking what I am sure we would all agree is a fairly commonsense view of what is urgent that is fine, but in the picture painted by my noble Friend perhaps an over-ambitious Secretary of State might fail to publish details of how a performance compared with others and those sorts of things to me do not seem to give any reason to believe that substantial harm may result. It might do, but it easily might not do. The way that part of the protocol is drawn up at the moment seems to make a far stronger case for Amendment No. 68 than if I had not read all of those reasons why intervention might be triggered. There are some matters, perhaps in the failure of substance section, which deserve to be included and are reasonable. However, in the failure of process section, there are some matters which could in
Page 11, line 7, at end insert--
("( ) For the purpose of subsection (8) above, urgency means there is immediate danger of substantial harm or substantial financial loss.")
"there is immediate danger of substantial harm or substantial financial loss".
Of course, the words "immediate" and "substantial" are the most important there. I have tabled this amendment in order to ask the Minister to explain on what the Government base their assessment of the need for this power. What particular examples do the Government have in mind with a view to seeing whether some criteria can be written in?
Amendment No. 69 provides that in circumstances of an urgency direction, the authority concerned is, at any rate, given an opportunity to make representations within a reasonable period after the direction has been made. If the Secretary of State uses these powers, he must inform the authority. It would be useful to provide specifically that the authority can make representations afterwards, although I recognise that that will be after the powers have come into play. The draft protocol recognises that, except in cases of urgency, the authority will normally be given the opportunity to make the necessary improvements itself. I should like to see that on the face of the Bill.
4 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page