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Baroness Farrington of Ribbleton: In responding to Amendment No. 77 I shall speak also to Amendments 78 to 81, which are grouped with it.

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As the noble Baroness, Lady Hamwee, said, the joint effect of Amendments Nos. 77 and 80 is to place a firm minimum on the size of cabinet--that is to say, the number of members--but to allow flexibility in either direction on the maximum number of members possible. In practice, the latter flexibility is likely to be used to increase the maximum size of cabinet as many might argue--as have some noble Lords--that restricting cabinet size to a range which is narrower than from five to 10 would be over-prescriptive.

The firm minimum seems undesirable to the Government. It would make impossible any arrangements based on a very small cabinet and very wide delegation to officers, for example. Neither would the Government wish to see executives any larger than 10. This is already a large number in terms of managing meetings and it could be a significant proportion of a medium-sized authority. Given the bar on members of the executive serving on the overview and scrutiny committees, providing for a higher maximum could render proper rigorous scrutiny of the executive impossible, thus losing much of the enhanced accountability that is the objective of the legislation.

The noble Baroness, Lady Hamwee, has referred on several occasions to the issue of flexibility and moving between roles. She seems to imply that the scrutiny role is a subordinate role, that career progression is to be seen as inevitable and that it is desirable for all councillors to be able to move between the two roles. The purpose of the legislation--I am sure all noble Lords who have had experience in local government will be aware of this--is to ensure that those who wish to fulfil a proper scrutiny role on behalf of the people who elect them, but who do not wish to turn their council service into a full-time career and wish to be able to maintain their other life outside local authority service, should be given the opportunity to do so. I hope that the Committee will not see scrutiny as being a lesser role. For this reason Amendments Nos. 78 and 81 cannot be supported either.

Amendment No. 79, which stands in the name of the noble Baroness, Lady Hamwee, deals with deputising for members of the executive. The Government are opposed to any kind of deputisation or substitution because we believe that it is extremely important that there should not be conflicts of interest. It would be very difficult for a genuine scrutiny role to be undertaken by someone who had been a party to the taking of the executive decision and who was then asked to make a judgment on it.

We do not intend that the executive should be some kind of sealed unit. We do not believe that there should be entire separation between the executive and other councillors. The executive will wish to take advice from other councillors, either informally or, for example, in committee meetings, and of course they will all come together in full council to determine the policy of the authority. However, the Government feel that it is important to avoid the possibility of conflict and we would not be in favour of formal arrangements for councillors outside the executive to stand in for executive councillors.

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I realise, from the contribution made by the noble Baroness, that she may find this response neither totally acceptable nor one with which she agrees. Nevertheless, I hope that she will feel able to withdraw her amendment.

The Earl of Carnarvon: I understand that the Government do not wish to move on Amendments Nos. 78 and 81. However, I believe that to have 10 people on the executive is very few on a large authority, such as the City of London with 155 members and Birmingham with 117. Altogether, 13 authorities have over 80 members. In some cases I believe that exceptions must be made. Obviously, I was not aiming for 15, but I wondered whether there was an opportunity to agree a figure somewhere between 10 and 15 if an authority felt that to be necessary. I wished to invite the Government to comment on those suggestions.

Baroness Farrington of Ribbleton: I hope that, on reflection, the noble Earl, Lord Carnarvon, will feel that the earlier reply I gave to the noble Baroness, Lady Hamwee, covers the points that he has raised. However, I should like to make the point that the size of the executive is not directly and proportionately related to the number of elected members on the authority. The point that the noble Earl made did not envisage the executive and strategic roles that would be fulfilled by the executive. If, however, there are further points that the noble Earl wishes to raise, I shall be only too happy to write to him.

Baroness Hamwee: I fear that the practical result of these measures may be that we are heading for authorities which do not comprise 117 or 150 members. Without commenting on whether the executive, overview and scrutiny roles differ in their seniority or worth, I remain concerned that it will not be possible for individuals to swap between the different roles. I accept that it would be awkward for individuals with jobs outside the local authority to take on an executive role. Nevertheless, I say again that I do not think it healthy to preclude the variety of experience that may be brought to bear in the cross-fertilisation of the contribution of different councillors serving on an authority. Their experience in different roles informs each successive role they take on.

The Minister is right to say that I am not entirely happy, but I shall not pursue the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 to 81 not moved.]

Lord Whitty moved Amendment No. 82:

    Page 5, line 43, at end insert--

("(10) Section 101 of the Local Government Act 1972 (arrangements for discharge of functions by local authorities) does not apply to the function of electing a leader under subsection (3)(a) or appointing councillors or an officer to the executive under subsection (3)(b)(ii) or (4)(b).").

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

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Clause 11 [Executive functions]:

Lord Dixon-Smith moved Amendment No. 83:

    Page 6, line 13, leave out subsections (3) to (5).

The noble Lord said: I must confess to the Committee that I allowed my eye to be seduced by the heading of Clause 11. It states "Executive functions". Indeed, it is repeated with added force in the margin. It seems to me slightly odd that it needs to be repeated in precisely the same terms. Perhaps the amendment was put down without sufficient care and perusal.

I need to say something about this matter because the clause made me think of a grammar exercise I was given at a relatively young age at school. It was handed to all members of the class. It was all in lower case--evenly spaced, no capitals, no nothing. It went like this: that that is is that that is not is not is not that it. We were invited to punctuate it so that it made sense. I see from the nods and laughter around the Committee that other Members were set precisely the same puzzle. It represents a fairly simple philosophy of life, because things that are, are, and things that are not, are not. This amendment actually sets that on its head because it says that that is, is not, and that that is not, is. So I have some difficulty in following it. If it is specified in regulations, it is not susceptible to executive function; and if it is not specified in regulations, then it is. I do wish that the Government could find a more felicitous way of framing these clauses so that one does not have to deal with that illogicality.

The Minister has withdrawn the clause that was originally on the face of the Bill and has replaced it with something that is immediately and immensely longer. I think that his amendment falls into precisely the same trap. I invite him to consider that point.

That said, if I were to press the amendment I would be in danger of putting myself in the position of proposing an illogicality. Therefore, when the time comes, I may well decide that it should not be pursued. However, we need to reach that point before I can do so.

11.15 p.m.

Baroness Miller of Chilthorne Domer: I rise to speak to Amendments Nos. 85, 86, 123 and 127 which are grouped with this amendment. It is regrettable that at 11.15 at night we should be starting on a part of the Bill which deals with a new form of working for local authorities. The amended clause is long and was set down very recently. Earlier today we said that we had not had much chance to look at the amendments and comment on them. That is certainly the case for the local authorities which want to see what these provisions mean for them.

It is in no way satisfactory to introduce amendments on the functions of something that is already new to us and where the guidance provided is very far from clear. I want to concentrate on some of the guidance to see how it relates to the functions explained here. I should like particularly to ask the Minister about the section that concerns area committees. The guidance says that unless area committees are politically balanced they cannot fulfil the scrutiny function. Some Members of

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the Committee may be aware of how area committees work in different parts of the country. The one thing they have is fairly widespread public support. It is perhaps the only form of council committee that has recently enthused the public to attend and take part, even quite frequently. For that reason it is important that the Government are quite sure about what they are doing when they make this kind of statement.

To require that area committees should be politically balanced shows a complete misunderstanding of how they come to be set up. They are directly elected by the electors of their area. Therefore, it is difficult for the council to make them politically balanced unless it ships in councillors from another area. That has happened in some cases, but I would regard it as a discredited model for an area committee.

Will area committees be allowed to scrutinise the area services? Surely they must be allowed to scrutinise those services at a local level. This should not preclude an overview or scrutiny committee taking a wider view of the council's performance in ensuring, for example, that services are consistent throughout the authority. That is an important function for an authority-wide scrutiny committee.

The guidance states that if members are taking part in an overview or scrutiny committee and they are members of an area committee, they must first declare an interest. In some authorities, all members are members of area committees, so they will all have to declare an interest. That will take a good deal of time. The guidance seems to say that, subsequently, they should not vote in the scrutiny committee. It may be that I have misread the guidance, but it is important that the Government are clear about where area committees fit into the system. They should ensure, as Amendment No. 123 attempts to do, that nothing in this part of the Bill or in the guidance adversely affects the way that area committees which are working well can continue to operate.

I turn now to partnership working with other authorities, an issue specifically addressed by our Amendments Nos. 127 and 128. They seek to ensure that the committees which are set up jointly between local authorities are not straitjacketed or disempowered by anything in this part of the Bill or in the regulations. If such a joint committee is to have an executive function, must it consist of executive members of authorities that are putting members on to the joint committee? This is a complicated issue. If eight members of a county council are to form partnerships with all the council's districts and take one district each, only 1.4 members will be available from the county council to serve on that joint executive. If it is a 10-member joint committee, it would not be able to send enough executive members. I hope that the Minister can enlighten me and reassure me that the Government's proposals will not disallow these ways of working. They are new in many places, but are so far working well.

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What is of most interest to all councillors and their constituents is that the budget and level of council tax should not be decided only by the executive but must be a matter for the full council.

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