Lord Whitty: First, I shall speak to the government amendments in this group which deal with functions which are the responsibility of the executive and with ways in which they can be delegated to area committees. These amendments are necessary to enable more flexibility in how executive functions are discharged and to clarify some of the provisions of the Bill as originally drafted.
Amendment No. 84 would, as the noble Lord, Lord Dixon-Smith, correctly indicated, replace Clause 11, to which his amendment and others relate, with a clause which enables the Secretary of State or the National Assembly to provide for functions which are or may be the responsibility of the executive and for functions which are not. In many ways, the main features of the previous clause would remain but the new clause would also provide for flexibility, enabling powers to allow regulations to specify the extent to which certain functions are the responsibility of the executive, including specifying steps in the course of exercising those functions.
The Government consider these provisions to be necessary so as to define properly the respective roles of the full council and the executive in setting, for example, the council's budget and policy framework, and in particular to ensure that the ultimate responsibility for setting the budget, council tax levels and overall policy lies with the full council following consideration of the proposals from the executive. I think that that probably answers the last point raised by the noble Baroness, Lady Miller. The new clause would also allow local councils greater flexibility in determining similar roles in the discharge of functions specified as "local choice" functions under subsection (2)(b).
Government Amendments Nos. 122, 125 and 126 introduce new powers for the Secretary of State to make regulations enabling an executive to delegate to area committees; delegate to another authority or enter into joint arrangements with other authorities or with area committees for the discharge of executive functions.
The Joint Committee chaired by the noble Lord, Lord Bowness, which considered the draft Bill recommended that the Bill should be capable of accommodating, within executive arrangements, area committees and joint arrangements. These provisions now do that. The other government amendments are consequential on those amendments.
To respond to the noble Baroness, Lady Miller, it is clear that area committees have an important function. I may wish to write to the noble Baroness in more detail. It is not true that the guidance implies that the area committees should in each case themselves be politically balanced, but that the overview and scrutiny of the policy must be politically balanced. There is no requirement for the area committees which
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discharge the functions necessarily to be balanced, although the noble Baroness seemed rather over-keen to approve of one-party states at area level and not at authority level. The guidance does not preclude area committees being of one party, so long as the oversight of the policy under which they operate is politically balanced in reflection of the balance on the council. Area committees are clearly important in that respect. They will have executive functions. Therefore, if a council member is a member of an area committee and of an overview and scrutiny committee, in that situation there would be a conflict of interest and he or she would have to stand aside. Joint committees to discharge executive functions must be drawn from members of the executive. That is important, so that there is a clear line of accountability.
Without going through the syntactical points raised by the noble Lord, Lord Dixon-Smith, at the beginning of the debate, even were the Committee not to accept Amendment No. 84 deleting the appropriate clause, if I interpret the proposal correctly it would cut across the overall objective of these parts of the Bill, which is to provide a clear and visible separate executive. That means that the executive must be clearly responsible for the majority of the council's functions, particularly the major services. The clause is intended to clarify that. Given the noble Lord's expression, it is obvious that it has not entirely succeeded and further clarification may be necessary at later stages of the Bill. I hope, however, that the government amendments are acceptable to the Committee and that noble Lords will not pursue the other amendments at this stage.
Baroness Miller of Chilthorne Domer: I rise briefly to clarify two points. First, certainly I am not in favour of one-party states, which was why earlier this evening I advocated that PR was a much better way to ensure that they never existed in local government. That is something in which I firmly believe. Secondly, I do not believe that the Minister has wholly answered my concern about area and scrutiny committees, and I shall welcome clarification of that matter in writing before Report stage so that we may examine it further.
Baroness Hamwee: I do not know whether the Government have considered the following. New Clause 11 would be more comprehensible to a number of those who have tried to understand it, and have made similar comments to me, if the Government provided something like a flow chart or matrix to show the order in which decisions are to be taken and dealt with. I refer to all the "what ifs" and the sequences.
I have a number of questions related to two of the Government's amendments. First, as to Amendment No. 125, subsection (1) of the new clause provides that,
"The Secretary of State may by regulations make provision for ... the discharge of any functions ...
"(a) by another local authority (within the meaning of section 101 of the Local Government Act 1972)".
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Can the Minister say to which words the words in parenthesis apply? Do they apply to "local authority" or to the discharge of functions by another authority within the meaning of Section 101? I was temporarily away from my seat and did not hear the whole of the Minister's explanation, but I do not believe that the Committee has as yet had a full explanation of how these provisions relate to Section 101 of the 1972 Act.
My second question is related to Amendment No. 126. Subsection (2)(a) refers to,
"circumstances in which the executive, or a committee or specified member of the executive, is to be a party to the arrangements in place of the authority".
Can the Minister explain what is meant by "party" in that context? Is the executive, individual member, and so on, the agent or principal? In that connection, can the Minister say whether currently there are regulations in place made by the Secretary of State which affect Section 101? If not, why is it necessary to provide for them here?
Finally, subsection (2)(e) provides for,
"the circumstances in which appointments to any such joint committee ... need not be made in accordance with the political balance requirements".
Why is that provision necessary in view of Clause 17, which no doubt we shall reach on the next day of the Committee stage?
Lord Whitty: The noble Baroness raises some very good questions. I do not believe that this evening she will receive a full explanation of the cross-relationship between these amendments and Section 101. I should offer the noble Baroness and the noble Lord, Lord Dixon-Smith, an explanation of that relationship. Since I have sought to follow the matter very carefully perhaps I should answer all the questions of the noble Baroness in writing. I apologise for not being able to do so instantaneously. I hope that, nevertheless, the overall objective of the Government's amendments in this group is clear. I shall clarify the position further between now and the next stage of the Bill.
Lord Dixon-Smith: I am grateful to the Minister for his response to my particular amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Whitty moved Amendment No. 84:
Leave out Clause 11, and insert the following new clause--
FUNCTIONS WHICH ARE THE RESPONSIBILITY OF AN EXECUTIVE
(".--(1) This section has effect for the purposes of determining the functions of a local authority which are the responsibility of an executive of the authority under executive arrangements.
(2) The Secretary of State may by regulations make provision for any function of a local authority specified in the regulations--
(a) to be a function which is not to be the responsibility of an executive of the authority under executive arrangements,
(b) to be a function which may be the responsibility of such an executive under such arrangements, or
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(c) to be a function which--
(i) to the extent provided by the regulations is to be the responsibility of such an executive under such arrangements, and
(ii) to the extent provided by the regulations is not to be the responsibility of such an executive under such arrangements.
(3) Any functions of a local authority which are not specified in regulations under subsection (2) are to be the responsibility of an executive of the authority under executive arrangements.
(4) Executive arrangements may make provision for any function of a local authority falling within subsection (2)(b)--
(a) to be a function which is to be the responsibility of an executive of the authority, or
(b) to be a function which--
(i) to the extent provided by the arrangements is to be the responsibility of such an executive, and
(ii) to the extent provided by the arrangements is not to be the responsibility of such an executive.
(5) The power under subsection (2)(c) or (4)(b) includes power in relation to any function of a local authority--
(a) to designate any action in connection with the discharge of that function which is to be the responsibility of an executive of a local authority, and
(b) to designate any action in connection with the discharge of that function which is not to be the responsibility of such an executive.
(6) The Secretary of State may by regulations specify cases or circumstances in which any function of a local authority which, by virtue of the preceding provisions of this section, would otherwise be the responsibility of an executive of the authority to any extent is not to be the responsibility of such an executive to that or any particular extent.
(7) A function of a local authority may, by virtue of this section, be the responsibility of an executive of the authority to any extent notwithstanding that section 101 of the Local Government Act 1972, or any provision of that section, does not apply to that function.
(8) Any reference in the following provisions of this Part to any functions which are, or are not, the responsibility of an executive of a local authority under executive arrangements is a reference to the functions of the authority to the extent to which they are or (as the case may be) are not, by virtue of this section, the responsibility of the executive under such arrangements.
(9) Any function which is the responsibility of an executive of a local authority under executive arrangements--
(a) is to be regarded as exercisable by the executive on behalf of the authority, and
(b) is to be discharged in accordance with any provisions made by or under this Part which relate to the discharge of any such function.
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(10) Any function which is the responsibility of an executive of a local authority under executive arrangements--
(a) may not be discharged by the authority,
(b) is not to be a function to which section 101(1) of the Local Government Act 1972 applies, and
(c) may be the subject of arrangements made under section 101(5) of that Act only if permitted by any provision made under section (Joint exercise of functions).
(11) Subject to any provision made under subsection (12), any function which, under executive arrangements, is not the responsibility of an executive of a local authority is to be discharged in any way which would be permitted or required apart from the provisions made by or under this Part.
(12) The Secretary of State may by regulations make provision with respect to the discharge of any function which, under executive arrangements, is not the responsibility of an executive of a local authority (including provision disapplying section 101 of the Local Government Act 1972 or any provision of that section).
(13) In this section--
"action" in relation to any function includes any action (of whatever nature and whether or not separately identified by any enactment) involving--
(a) the taking of any step in the course of, or otherwise for the purposes of or in connection with, the discharge of the function,
(b) the doing of anything incidental or conducive to the discharge of the function, or
(c) the doing of anything expedient in connection with the discharge of the function or any action falling within paragraph (a) or (b),
"function" means a function of any nature, whether conferred or otherwise arising before, on or after the passing of this Act.").
The noble Lord said: I beg to move Amendment No. 84.
[Amendments Nos. 85 and 86, as amendments to Amendment No. 84, not moved.]
On Question, Amendment No. 84 agreed to.