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Lord Dixon-Smith: I am grateful to the Minister for the words he has used; they are extremely helpful. As
I said, it is a probing amendment. I am glad that he acknowledges that there is an issue and I am happy to beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Dixon-Smith moved Amendment No. 18:
- Page 2, line 24, leave out subsection (6).
The noble Lord said: Amendment No. 18 seeks to delete subsection (6) from Clause 2. I read subsection (6) and I had difficulty in understanding what it is supposed to mean. It states:
- "Nothing in subsection (4) or (5) affects the generality of the power under subsection (1)".
Lord Whitty: I regret to say that on this occasion the noble Lord has not convinced me with his argument. The point of the power of well-being is that it makes a broad range of activities available for local authorities to promote. We have set out some of those activities in Clause 2(4), but that is not intended to be an exhaustive list.
If we were to accept Amendment No. 18, it could potentially cast significant doubt on the scope of the power. We need to make it absolutely clear that Clause 2(4) is simply indicative and not exhaustive. It is included principally to remove some of the doubts that currently exist about some of the activities referred to in Clause 2(4).
There are restrictions on the power in subsections (1) and (2) of Clause 3, but we do not wish to draft the power in such a way that it is unduly restricted. Subsection (6) leaves no doubt that the power is wide. Its deletion would unnecessarily restrict the power and damage the purpose of the Bill. For that reason, I hope that the noble Lord will not pursue this amendment.
Lord Dixon-Smith: I am grateful to the Minister for that reply, which I shall study with care. Should I need to return to the matter, the noble Lord will find out in due course. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Limits on power to promote well-being]:
Baroness Hamwee moved Amendment No. 19:
- Page 2, line 27, after ("any") insert ("specific").
The noble Baroness said: In moving Amendment No. 19 I shall speak at the same time to Amendment No. 20. In Clause 3 we move on from the extension of local authority powers to restrictions on those powers. My first point on this clause concerns subsection (1), where it is made clear that the new power of well-being is not to enable a local authority to do anything that it would be unable to do by virtue of a prohibition, restriction or limitation contained in another enactment.
Amendment No. 19 seeks to make the position clear as to when prohibitions, restrictions and limitations may apply by inserting the word, "specific". I have little hope that the Government will find this an attractive amendment because I appreciate that, in future legislation, they would not want to have to return constantly to this enactment in order to spell out those restrictions, notwithstanding Clause 2 of this Bill. Nevertheless, I should like to make the point that it would be unfortunate if, in the future, confusion were to arise as to whether a restriction is one that will bite for the purposes of Clauses 3 and 2.
The purpose of Amendment No. 20 is to clarify what is meant by the term "limitation", and in effect the amendment deletes that word. The words "prohibition", "restriction" and "limitation" could amount to a long list of circumstances in which the new powers could not be exercised. What is a limitation if it is not a restriction or a prohibition?
In particular, in explaining the aim of the clause and its impact in terms of achieving the laudable aims of the White Paper, can the Minister assure the Committee that the impact of Clause 2 would not be significantly reduced? Are the limitations both explicit and implicit? If Clause 2 is intended to give councils greater flexibility, will their community well-being powers be undermined by allowing implicit limitations?
Finally, how will this relate to resources? Councils will need to find resources for the process of checking whether there are any limitations. We are concerned at the expense and delay that might be incurred if councils wished to exercise the new well-being power but felt that they needed to be careful about the question of limitations. I beg to move.
5.45 p.m.
Baroness Farrington of Ribbleton: Unfortunately, the Government cannot accept Amendments Nos. 19 and 20. The wording of Clause 3(1) is very clear as to which restrictions in other legislation will limit the scope of the well-being power in Clause 2.
Local authorities may not use the well-being power to get round any prohibition, restriction or limitation contained in any other enactment; in other words, any prohibition spelt out within another piece of local government statute. These are restrictions that have been expressly laid down by Parliament as necessary checks on authorities' various activities.
These checks may take a variety of forms. For example, some statutes expressly prohibit an authority from undertaking a particular activity. Those
prohibitions will apply also to the well-being power. In other cases, local authorities are expressly restricted in the action they may take. For example, conditions may be attached which restrict authorities' freedom of action by requiring them to do things in a certain way. Finally, powers may be limited by the express requirements of other legislation. For example, the requirement to achieve best value under the terms of the Local Government Act 1999.I suspect that it is these express, rather than specific, prohibitions and restrictions that formed the basis for the noble Baroness tabling Amendment No. 19. This amendment would not add anything to what is already enshrined in the Bill, nor would a reference to express restrictions. Both are unnecessary and would be more likely to confuse the very objective that the Government and the noble Baroness want to achieve.
The use of the words "prohibition", "restriction" and "limitation" is purposely broad. It is supposed to avoid future legal argument about whether a condition--expressly stated in other legislation--is a "restriction" or a "limitation". I hope that answers the question of the noble Baroness. It appears that the noble Baroness is seeking a definition as to why the terms were used in previous legislation. I fear that that could very considerably lengthen my reply, which nobody would wish.
If accepted, Amendment No. 20 might open up the scope for such arguments, and as such we feel unable to accept it. With these explanations, I hope that the noble Baroness can be persuaded to withdraw Amendment No. 19 and not to move Amendment No. 20.
Baroness Hamwee: I can tell the Minister that I shall withdraw Amendment No. 19 because her response has not surprised me. However, I reiterate my concern that, given the increasing pace of legislation, Parliament should be clear on how new legislation affects previous enactments.
As regards Amendment No. 20, I remain unclear about the difference between a restriction and a limitation. Here I am expressing not only a lack of understanding on my part, because this point has been raised by local government bodies. I take the Minister's point that a long explanation might prove rather tedious for the Committee, but I believe that it is an important matter. I wonder whether I may ask the noble Baroness to write to me following this stage. It is a matter of considerable concern, and I should not like to let the concern linger if there is a way of dealing with it.
Baroness Farrington of Ribbleton: We shall be delighted to write to the noble Baroness.
Baroness Hamwee: I thank the Minister for that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee moved Amendment No. 21:
- Page 2, leave out line 29 and insert ("passed or made after the enactment of this Act.").
The noble Baroness said: I can be even briefer in moving this amendment. Clause 3(1) makes it clear that the enactments with which we are dealing, which might provide prohibitions, restrictions and limitations, are enactments, whenever passed or made. My amendment would seek to change that to enactments made or passed after the enactment of this Act. This is again a plea for certainty and clarity. If there are already prohibitions, restrictions and limitations which would apply, I think that they should be recorded, not necessarily on the face of the Bill but at this or at a subsequent stage, through guidance to local authorities as to where they might find the prohibitions, restrictions and limitations which are relevant. I think that the Government have a responsibility to assist local authorities in assessing what existing enactments will affect them. I beg to move.
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