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The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I understand the broad concerns and intent behind the amendment. I find it slightly odd that the amendment is laid to this Bill when we are still considering the substantive legislation. I do not believe that this is the best way to achieve what the noble Earl intends.

It is obviously important that we make satisfactory provision to protect asylum seekers and their dependants and that we should not impede local authorities in playing their part in that. However, the whole import of Part VI of the Immigration and Asylum Bill is to set out the manner in which the Secretary of State may make arrangements to provide support and accommodation to asylum seekers and their dependants. In doing so, he makes contractual arrangements with local authorities or, as a last resort, directs them to carry out certain functions in respect of asylum seekers.

I believe that the amendment to this Bill is flawed on a number of grounds. The exemption powers in Clause 2(5) of the Local Government Bill are in respect of best value duties rather than the exercise of local authority functions as the wording of the amendment implies. It is not the purpose of Clause 2(5) to exempt authorities from exercising any of their functions; the provision is concerned with disapplying best value duties in respect of certain functions of best value authorities. If the Secretary of State exercises this power and makes an order, the authority will still need to carry out the functions, but in doing so will not be subject to the best value duties.

I understand the concern that lies behind the amendment tabled by the noble Earl. However, it seeks to create a means by which authorities engaged in

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functions described in Part VI of the Immigration and Asylum Bill might be consulted with a view to exempting them from certain aspects of the duty of best value in respect of them. I understand, and we all recognise, the issue of the burden which falls on relatively few authorities with large numbers of asylum seekers. However, the whole purpose of Part VI of the Immigration and Asylum Bill is to relieve authorities of those duties and transfer responsibilities for support of asylum seekers to the Home Secretary.

There is still an important role for local authorities but that, as I said, is, in effect, as contractors rather than in pursuance of any statutory function. The contractual obligations would provide a level of underpinning for the effective delivery of service. That would apply whether or not the parties to them--in this case local authorities--were subject to best value.

If we were to exempt authorities from the duty of best value in this area, that could lessen the pressure on those local authorities to make the most efficient use of their resources and to deny them the flexibility that the best value regime provides.

There is also a slight implication that the duty of best value can lead to penalising local authorities whereas we are trying to create a climate in which they can improve all their services. I do not think that absolving authorities from the duty of best value in this way would be helpful under the new regime. It would not do anything to change their contractual obligations under the new immigration or asylum regime with regard to supporting asylum seekers.

There is another technical flaw to the amendment. The scope of this act, which applies only to England and Wales, is different from the scope of the Immigration and Asylum Bill. I expect that the noble Earl realises that. As I have said, the central point is that exempting authorities from best value would not achieve the aims that he is seeking under the regime proposed in the Immigration and Asylum Bill. I therefore hope that in relation to this Bill, at least, the noble Earl will withdraw his amendment.

Baroness Hamwee: My Lords, before the Minister sits down, and with the leave of the House, perhaps I may ask a question. I understood him to say that, when local authorities carry out a duty as a contractor, that duty is parallel to but different from and therefore outside the regime of best value. I wonder whether I have understood that correctly.

Lord Whitty: My Lords, it is not a duty that is affected by best value. Clearly, the total regime is still one of best value but the performance is almost certainly regulated by the quasi-contractual relationship to the Home Secretary, rather than the best value regime.

Earl Russell: My Lords, I am grateful to the Minister for that. That is just about what I hoped to hear. I appreciate that there is a problem about whether this is the appropriate place to raise this matter. I informed the noble Lord, Lord Williams of Mostyn, that I intended to raise it here. I hope there has been communication between him and the noble Lord. All

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I want to hear is that a local authority would not be penalised and would not suffer financial loss under best value if it acted according to a contract with another Secretary of State. If I can take that from the Minister's nods--perhaps I may enter them into the record by mentioning them--I have received all the assurance I could legitimately hope for. Therefore, with thanks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Performance indicators and standards]:

Lord Whitty moved Amendment No. 2:

Page 3, line 36, leave out ("such persons as he thinks fit.") and insert-- ("(a) persons appearing to him to represent the best value authorities concerned, and (b) such other persons (if any) as he thinks fit.")

The noble Lord said: My Lords, at Report stage of the Bill I undertook to table an amendment along the lines of Amendment No. 2. This amendment would place on the face of the Bill a requirement for the Secretary of State in England and the Welsh Assembly in Wales to include those people they consider to be representative of best value authorities, and other bodies they think fit, when consulting on performance indicators and standards.

I recognise that this has been an issue of some concern in local government associations. I believe the amendment will meet the issues raised at earlier stages of the Bill by the noble Baroness, Lady Miller of Chilthorne Domer. It also addresses the concerns I raised on Report. I beg to move.

Baroness Hamwee: My Lords, from these Benches, on behalf of my noble friend and myself, I thank the Minister for proposing the amendment. It certainly meets a point with which we were concerned at earlier stages. I should like to record our thanks.

On Question, amendment agreed to.

Clause 15 [Secretary of State's powers]:

Baroness Hamwee moved Amendment No. 3:

Page 11, line 38, at end insert--
("( ) For the purposes of subsection (11), "urgent" means danger of substantial harm or substantial financial loss to prevent which the Secretary of State considers it necessary not to comply with subsection (9) or (10) as the case may be.")

The noble Baroness said: My Lords, Amendment No. 3 takes us to Clause 15 which deals with intervention powers. Under Clause 15 the powers of the Secretary of State are very wide ranging. We accept that our views and those of the Government differ. We do not seek further to object to the provisions for intervention, save in one respect.

Under Clause 15(9) before a direction can be given, for instance to follow specified procedures in relation to a performance plan, to select just one example, the authority has an opportunity to make representations. Under Clause 15(10) the Secretary of State must have

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regard to any statement by the authority when the auditor recommends a direction. However, under Clause 15(11) if the Secretary of State,

    "considers the direction sufficiently urgent"

the Secretary of State can dispense with the requirements of subsections (9) and (10); that is, giving the opportunity to make representations and having regard to a statement.

The amendment seeks, as we have done at previous stages, to define the term "urgent". There are no criteria on the face of the Bill. We are aware, of course, of the draft protocol with regard to the use of intervention powers. That gives a number of examples of failures of process and substance which might, according to the draft protocol, trigger the use of the powers. They may be minor. Of course, they may be major, but the point of my amendment is to highlight that they may be minor.

Among the failures of process is the failure to publish a programme of fundamental performance reviews. The draft does not say that that must be a material failure. So the publication, which has to be in compliance with the statutory framework, might in some minor regard fail to comply with one small requirement of that framework.

The failures of process also include failure to publish performance information as prescribed in respect of content, form or timing. Again, there could be an immaterial failure with regard to form. The failures of substance include failure to improve service standards or a deterioration in service standards. Again, the failure could be minor--barely amounting to "failure" as we normally understand it.

Many of these matters are matters for the electorate. I am sure that the Minister will say that the Secretary of State will not want to use his extreme powers where the failures are minor; but accepting that the possibility still exists (because the provisions of the Bill do not in any way constrain the use of the powers by defining what is "urgent"), and accepting that the Government are intent on having this regime of intervention available for use, we seek again to draw attention to the need to define the circumstances when the Secretary of State is not required to give the authority the opportunities to which I referred.

We believe that it is incumbent on the Government to ensure that these matters are spelt out. In Grand Committee the Minister made the point that financial loss could be long term. He said that the provision which we were proposing was over rigid and that the Government wanted to see more flexibility. We are concerned about that. We believe that when considerable powers are given to the Secretary of State, he should not be able to exercise them flexibly--at any rate, not on a case-by-case basis. There is a distinction perhaps between flexibility as applied to distinguish between different authorities, and flexibility which recognises that circumstances applying to all authorities may vary over time. I do not believe that we have sufficiently addressed that distinction.

We believe that discretionary powers should have limits set to their use. The Government said that, because we are in a rapidly changing situation and in a

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new form of regime, they cannot lay out on the face of the Bill what is necessary. We believe that it is incumbent on the Government to attempt to do so. At the last stage the Minister criticised my amendment for not providing fast-track procedures to address what he described as persistent or systematic failure. Again, I deliberately excluded those because, by definition, they are matters which will not appear overnight and therefore should not enable the use of the urgency powers. My main concern is to ensure that the use of the word "urgent" is defined.

I am aware that it is intended that the central local partnership will discuss the intervention protocol next week. I tabled this amendment today to seek assurances that the Government--they cannot, of course, speak for the other party in that partnership--believe that this is a matter which they regard as necessary to address when the protocol is finalised. I beg to move.

6 p.m.

Lord Whitty: My Lords, as the noble Baroness said, we touched on this issue at earlier stages. The provision under this clause to act in "urgent" cases is included to protect services, and particularly service users and vulnerable people. In using these fast-track procedures, the Secretary of State cannot act in an arbitrary way. Under Section 12 he must have and give reasons for recourse to the fast-track provisions and for bypassing the lengthier procedures; and he must act reasonably. The decision to use them may be subject to public scrutiny and challenge in the courts. Therefore, the noble Baroness's fear that this could be used for minor and technical infringements is not valid.

Urgent intervention would occur only in exceptional circumstances where there is clear evidence of serious or persistent failure. The provisions are needed so that the Secretary of State is able to act swiftly, particularly when vulnerable people are at risk or in situations where immediate action is needed and we need the power to act.

We can imagine a situation, for example, where an authority persistently fails to deliver. The social services authority, for example, may be unwilling to provide an approved social service for the assessment of mentally ill people who require compulsory hospital admission. In that case, it is not only the safety of the immediately vulnerable section of the population that is at issue, but also the safety of others. It is precisely because the provisions may be needed in the most delicate and sensitive of cases--perhaps to protect children or the elderly--that we must not be unduly restrictive in the possible scope of their use.

The noble Baroness asked in what circumstances the provisions could be used and why therefore we do not put them on the face of the Bill, which is the intention of her amendment. But the amendment is unduly tight, considering the number of very different situations where this could arise; for example, a social services authority could fail to make inquiries about children who may be at risk of abuse and to make the necessary arrangements to protect them. It could fail to allocate

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social workers to look after children and to meet their needs. It could fail to assess and plan for the social care of frail and disabled people in hospital who cannot be discharged without support and it could fail to provide the services that they require.

There comes a point where a continuous and persistent failure to do so becomes an urgent matter. When such failures have been identified, an authority would normally already have been asked to prepare an action plan and been given a specific time in which to implement it. But when it persists in failure to implement it, and only when an authority has been unable or unwilling to prepare a viable plan, would we need to invoke these fast-track intervention powers.

There are a number of different situations where that could arise, and those are not all covered by the amendment. That is why, rather than placing something on the face of the Bill, we are pursuing this by trying to draw up a protocol agreed with the LGA. That protocol should set out the principles underpinning intervention and the procedures to be followed. It should clarify the provisions in the Bill and it will include an agreed definition of the circumstances in which we envisage the fast-track procedure being used.

It is perhaps unfortunate timing in that the protocol is close to being finalised. Indeed, we expect it to be signed at the central local partnership meeting next week on 21st July with a view to it taking effect immediately on Royal Assent to this Bill. As the noble Baroness said in reflecting on my earlier remarks, the reason why we feel it inappropriate for the provision to be on the face of the Bill is that we need a little flexibility in this regard.

These are new areas where we, the LGA and local authorities may need to modify procedures in the light of experience and learn from lessons on intervention in general, particularly in relation to the fast-track powers. It is therefore more appropriate for a formula providing for the procedures and the stages to reach that procedure, and the situations in which the procedure can be bypassed, to be in a protocol rather than on the face of the Bill. Procedures in that protocol could be modified by agreement to suit changing circumstances and to adapt to experience. Those changes would have to be agreed with the LGA. That is a better way of dealing with the many and varied situations that could arise when an urgent issue was identified. Whether we used the fast-track procedures would depend on the circumstances. We do not envisage using them very frequently, but we wish to have the powers available subject to the protocol to deal with the most difficult cases. I therefore ask the noble Baroness to withdraw the amendment.

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