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Baroness Hamwee: My Lords, I may be doing the Minister and her department a disservice, but, when we are told that certain details must be a matter for "local choice", I begin to wonder whether they are the more difficult matters. I accept that the situation I outlined is not as broad ranging as one might need, but it is up to us to tackle the issues. The Minister says that these are matters for local choice. But how can that be? One has to look at existing constraints which will, presumably, translate into procedural standing orders, and so on. Something along the lines of what I proposed should be up there with the other provisions that will inform those standing orders.

The example the noble Baroness gave of a child being taken into care leaves me with more questions because it suggests that it will not be possible to delegate such decisions to officers. Is the noble Baroness saying that a decision such as that of taking a child into care would be led by an officer and that one has to wait for a meeting of the executive? I am not clear how that kind of decision lies vis-a-vis executive arrangements.

Baroness Farrington of Ribbleton: My Lords, in the normal course of events it would quite clearly be a matter of judgment for a professional officer in a social services department. However, there could be exceptional circumstances in which a decision had to be taken because something was unforeseeably outwith the normal policy guidance and the normal terms of reference.

Baroness Hamwee: My Lords, I understand that. It seems to me that the arrangements for an overview and scrutiny committee to intervene should take account of the need for an exceptionally urgent arrangement. My provision about a monitoring officer's involvement may not be correct, but I do not think that it is too far wrong either. Consideration on our part and on the part of practitioners of precisely how this will work in practice will be well worth undertaking.

Baroness Farrington of Ribbleton: My Lords, it may be helpful if I give the noble Baroness an example without going into enough detail for anyone to be able to identify the individual concerned. Prior to the previous administration taking office and constraining the roles of chairs of committees, a chair of a committee could be approached as regards a particular policy which was generally opposed to that of the authority. I refer to the case of a child who was the subject of an adoption order where family violence and

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tragedy were involved and where the only answer was for that child to be placed, at the authority's expense, in a privately funded boarding school along with the siblings of the family in which the child was to be placed for adoption. That is the kind of situation one envisages, not one where, for example, a social worker made a judgment to seek a place of safety order. I hope that that helps.

Baroness Hamwee: My Lords, I thank the noble Baroness for that example. I have not disputed that there are difficult situations and that the arrangements ought to be modelled to take account of them. I cannot take the matter further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Baroness Hamwee moved Amendment No. 32:

    Page 13, line 1, leave out subsection (4) and insert--

("(4) An overview and scrutiny committee of a local authority may discharge any functions imposed or permitted by the authority other than those functions specified by the Secretary of State in regulations.").

The noble Baroness said: My Lords, Clause 19(4) provides that,

    "An overview and scrutiny committee ... may not discharge any functions other than its functions under this section".

That prompts the question: are the Government absolutely sure that they have Clause 19 completely correct? I assume that the Government are not quite sure about that at the moment because they have tabled an amendment to the clause. My Amendment No. 32 would reverse the position. It states:

    "An overview and scrutiny committee of a local authority may discharge any functions imposed or permitted by the authority other than those functions specified by the Secretary of State in regulations".

In other words, the Secretary of State can prevent overview and scrutiny committees undertaking certain activities but that is not as tight and inflexible a provision as a clause which states that primary legislation governs exactly what an overview and scrutiny committee can do and that it cannot do anything else at all.

Let me give an example of an area of council operations which may exercise some authorities under the new arrangements. The client/contractor split, with separate DSO committees, has been introduced in many local authorities. I believe that that issue is not covered in the draft guidelines. I assume that the executive will therefore have responsibility for both client and contractor. It may be that a local authority would want to replicate the current split and would find it convenient for the overview and scrutiny committee to take on the client role. It seems that that would not be allowed if we leave the clause as it is. As people become familiar with what can and cannot be done and with what is convenient under the new arrangements, there will be many more examples of that kind, and it might be useful for an overview and scrutiny committee to deal with them for the benefit of

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an authority. Primary legislation which is too restrictive could adversely affect the working of the authority. I beg to move.

Lord Whitty: My Lords, overview and scrutiny can comprise a wide range of functions, but it would be wrong to alter the clause to allow overview and scrutiny committees to undertake functions which are clearly executive functions or functions which may not be mandatory for the executive in the legislation but which are, nevertheless, executive functions--for example, licensing and so on. There may be some edges which need to be made clearer in the final guidance.

The issue that the noble Baroness raised in relation to the client/contractor arrangement was picked up in responses to the consultation and we shall consider the implications of that. But to move to allow the overview and scrutiny committees to take on, in the broadest sense, executive functions would not be appropriate. The committees are there to hold the executive to account for what it has done, for its plans and for how its statutory functions and other functions of the council are being discharged. It would blur the accountability were the overview and scrutiny committees themselves to carry out such functions. I wish to maintain that distinction, albeit that in operational terms "overview and function" could be quite broadly interpreted.

Baroness Hamwee: My Lords, I admire the Minister's confidence that by the end of the legislative process the drafting will be perfect. I do not challenge the executive/scrutiny split he referred to in his reply. I was simply suggesting that prudence might indicate that a mechanism which allowed for some revision after a little experience would be a good thing. But one can go so far in trying to smooth the process and I have perhaps gone further than I should have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 33:

    Page 13, line 6, at end insert--

("( ) Executive arrangements by a local authority must include provision which enables--
(a) any member of an overview and scrutiny committee of the authority to ensure that any matter which is relevant to the functions of the committee is included in the agenda for, and is discussed at, a meeting of the committee, and
(b) any member of a sub-committee of such a committee to ensure that any matter which is relevant to the functions of the sub-committee is included in the agenda for, and is discussed at, a meeting of the sub-committee.").

The noble Lord said: My Lords, in moving Amendment No. 33 I shall speak also to the other amendments in this group. They all deal with the role of the overview and scrutiny committee. I hope that they take us a few steps towards perfection. I am not necessarily claiming that we are absolutely there if we adopt the amendments.

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The House will recall that in Committee the right reverend Prelate the Bishop of Blackburn tabled two amendments in regard to such committees and that we agreed we would take them away and look at them. I believe that we have addressed the bulk of the right reverend Prelate's concerns, although there may be some other areas of concern that he and other noble Lords may wish to raise.

Amendment No. 33 addresses a fundamental concern highlighted in the debate on those amendments. Overview and scrutiny committees are a key element of any new arrangements. They are there to ensure proper accountability. To ensure that the executive is held to account in a robust way, the committees should ensure that any committee member who has a particular concern about the way in which the executive functions are performed can have that issue discussed. It was for that reason the right reverend Prelate tabled an amendment to allow any committee member to have matters put onto the agenda and discussed by right. I believe that we have met that particular concern.

The remaining amendments in the group address one of the other concerns of the right reverend Prelate; one more broadly shared by all sides of the House: that is, the need to ensure that the vital role played by church representatives and parent governors in advising local authorities on education areas is protected. The Government greatly share the wish of the House to ensure that that contribution continues in future. That is why we wish to see church representatives and parent governors given a guaranteed role on overview and scrutiny committees dealing with education.

It was not felt that the amendments we brought forward in Committee adequately met those requirements. We have looked at the proposals brought forward by the right reverend Prelate and have agreed that more detail was needed. That is why Amendments Nos. 35, 36 and 38 remove the previous subsections from Clause 19 and Amendment No. 86 replaces them in greater detail in Schedule 1--as it now is--to the Bill.

I hope our amendment meets those concerns. I believe there is one issue addressed by the right reverend Prelate's earlier amendment which we have not addressed. It is the issue of the Bill requiring that there must be an overview and scrutiny committee dealing solely with education. In fact, what we have done goes somewhat wider than that request. For each executive function, there is a duty for there to be at least one overview and scrutiny committee. Education will be the responsibility of the executive and will therefore have to be covered by at least one committee.

However, we did not intend to limit those committees to the traditional narrow silos of responsibility along the old departmental lines of housing, education and so on. We should expect councils to take a more imaginative, joined-up approach to the structure of the committees, as they would to the executive. For example, an overview and

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scrutiny committee might well be set up to look at issues around lifelong learning or social wellbeing and in that context address issues relating to education. The Government would certainly want both church and parent governor representatives to be involved in such discussions. That is why we did not wish to restrict the committee remit unnecessarily.

Amendment No. 86 therefore guarantees the place, with voting rights, of church and parent governor representatives on overview and scrutiny committees which are examining education as part or all of their remit. I believe that that meets in a slightly different way the concerns expressed in Committee and ensures the important continuing strong presence of church and parent representatives at the centre of the council's policy development mechanisms. I beg to move.

10.15 p.m.

The Lord Bishop of Blackburn: My Lords, Amendment No. 33 in the Minister's name answers the concern I raised in Committee about the ability of members of the overview and scrutiny committees to control their own agenda. The important power to place items on the agenda will strengthen the position of all members, in particular, those appointed to represent the Churches, faith communities and parent governors, who might otherwise--we must admit--be a little overwhelmed by the local political parties. Those powers will be necessary for the effective scrutiny of the executive actions. I warmly welcome the Government's response.

On behalf of the Churches I want to welcome the intention of Amendment No. 86 to set out in a schedule the process for appointing church representatives and representatives of the faith communities where they are providers of schools within the area of a local education authority to any overview and scrutiny committee or sub-committee dealing with educational matters. I welcome also the force of paragraph 5 of the schedule in particular. In recent years, some local education authorities have questioned the right of church representatives to vote in committee on matters affecting the provision of church schools. This has been to prevent them from undertaking the very duty for which they were appointed. While church representatives on education committees are free to express themselves across the range of the educational work of the authority, they were appointed to represent the work of the Church as providers of schools in partnership with the local education authority and we have strongly challenged any attempt to limit their voting on grounds of interest. Paragraph 5 is therefore particularly welcome in that it clarifies the right of church representatives to vote on any education matter.

I come like Oliver Twist asking for a little more. I have written to the noble Lord, Lord Whitty, to express two remaining areas of concern with the amendment which I hope he will be willing to address as soon as reasonably possible. Although neither is of major importance, each would however ensure the smooth implementation of the Government's intentions in every local education authority. As seems

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to have become my custom in recent days, in both cases I speak with the support of the chairman of the Catholic Education Service.

The first area of concern relates to paragraph 4 of the schedule and is a matter of language. The amendment before the House refers to,

    "the persons who appoint foundation governors for Church of England schools in the area",

and again in sub-paragraph (4)(b) to

    "the persons who appoint foundation governors for Roman Catholic Church schools in the area"

This somewhat cumbersome form of words is that used in the Education Act 1944 and predates the legal establishment of diocesan boards of education in the Church of England in legislation in 1991, and the legal recognition of the powers in relation to Roman Catholic Church schools of the Roman Catholic diocesan bishop, in legislation in 1993. It would be particularly helpful if we could reflect this change. In practice it has always in the Church of England been the diocesan board of education that has nominated representatives to the local education authority concerned, although in fact a number of other bodies, parishes, deaneries and trustees do appoint foundation governors. A change of the language would avoid potential confusion, intentional or otherwise. Where there is more than one diocese covering the authority in question it would be up to the diocesan boards of education working together to agree among themselves, as they have in the past, which should make the nomination or, if they failed to agree, for the local education authority to appoint from among those nominated.

The other small outstanding area of concern relates to the Secretary of State's power under paragraph 6 of the amendment to give directions to a relevant English authority as to the appointment of church and other faith representatives to appropriate overview and scrutiny committees and sub-committees. We can envisage potential circumstances of doubt or disagreement as local education authorities develop their flexible plans for crosscutting working and joined-up thinking as to which committees and sub-committees should receive church representatives. Where this doubt or disagreement affects representatives of other denominations and faiths, other than the Church of England and the Roman Catholic Church, the Secretary of State has power under this paragraph to settle disagreement and give appropriate directions. Such power, it seems to us, the Secretary of State would not have in relation to the Church of England and the Roman Catholic Church representatives. We cannot believe that this was the intention of the Government and we would hope that this can be reconsidered and that the Secretary of State could be given the power under this schedule to deal with the representatives of the two major church providers of schools.

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